What Happens if I Miss My Meal and Rest Periods?

Meal Periods

Under California law, an hourly employee who works six or more hours a day is entitled to an unpaid and uninterrupted 30 minute meal period.  During this 30 minute meal period, the employee is not required to perform any work related activities.  However, if the employee does not take the 30 minute meal period that does not necessarily mean that the employer is at fault.

In a case called Brinker Restaurant Corp. v. Superior Court, the California Supreme Court held that while an employer is required to allow an employee an uninterrupted 30 minute meal break when he or she works 6 or more hours, the employer is not required to police the employee to make sure the lunch is taken.  In other words, if your employer tells you that you are allowed to take a lunch period during a certain time period and you take your lunch breaks on certain days and you decide not to take lunch breaks on other days, the employer will likely not be found liable to you for your missed meal periods.  The California Supreme Court has shifted the responsibility of taking the lunch break onto the employee.

Now, under California Labor Law, if an employee misses a lunch period, that employee is entitled to one hour of additional wages for the day that the meal period was missed.  If the employer fails to pay the employee for the missed meal period, it potentially opens the employee up to significant fees and penalties.  However, if an employee chose to skip the meal period, then the employer is not required to pay the employee the additional hour’s wage for the day that the employee skipped his or her meal period.

In the instance where the employee is required to work through lunch at the request of the employer or attend a mandatory meeting during the lunch hour, the employer is required to pay the employee the one hour wage for that lunch period.  The hour wage that the employer is required to pay is the straight wage, not overtime, regardless if the employee worked more than 8 hours on the day that she or he was required to work through lunch.

Rest Periods

An employer is required to provide a paid 10 minute rest period for every 4 hours worked or fraction thereof.  Accordingly, if one is scheduled to work 8 hours that would entitle the employee to two paid 10 minute rest periods.  As is the case with lunch periods, an employee is entitled to one hour’s pay for missing a rest period.  However, if the employee misses both mandated rest periods, he or she is still only entitled to only one hour of wages.

During these rest periods, the employer must relieve employees of all duties during rest breaks and relinquish any control over how the employee spends his or her break time.  In addition, it is the employee’s responsibility to take the rest period.  If the employee decides to work through the rest period, despite being allowed to take a break, the employer will not be responsible to pay the employee an hour’s wage.

If you have any further questions about missed meal and lunch periods, please contact an attorney at The Rinka Law Firm, PC at 310-556-9653.

2018 California Employment Law Changes

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Just like every new year in California, changes in the law are in store for California employers and 2018 is no different.  With the ringing in of 2018, Californians can expect changes to their pay checks and employers with have to be more conscientious when interviewing.  Here is a list of significant employment law changes that will go in effect in 2018:

Increase in Minimum Wage

The minimum wage for employers with 26 employees or more is increasing from $10.50/hour to $11.00/hour.  The minimum wage for employers with 25 or fewer employees is going from $10.00/hour to $10.50/hour.

Do Not Ask About Criminal Convictions or Salary History

Starting on January 1, 2018, employers cannot ask about an applicant’s past criminal conviction(s).  The reason for this is to prevent an employer from dismissing an ex-con, who has the skills for the position, as an applicant, simply due to his/her past criminal history.  The law does not, however, prevent an employer from performing a background check and discovery of the applicant’s past criminal conviction.

Employers are also prohibited from asking about an employee’s salary history.  The California legislature has made the sexist determination that female employees are not as good of salary negotiators as men, so to assist women in negotiating a salary, the legislature has prohibited employers about asking an employee’s salary history.  The legislature’s belief is that by eliminating the salary history question, employers will offer the same salary to an equally qualified woman as it would to a man.  The law does not prevent an applicant from volunteering his or her salary history.

Similar Pay for Similar Work

Starting in 2018, employers are prohibited from paying white males more than females and other minorities for work that is “substantially similar.”  If there is a discrepancy in pay between a white male employee and a female or other minority, the employer must be able to explain that the reason for the pay discrepancy is something other than race, sex or ethnicity.

This could be an issue that could become very contentious when comparing employees whose jobs do not involve mundane actives, such as a register clerk.  It is very easy to compare salaries of register clerks and whether there is a discrepancy.  Furthermore, since the role of a register clerk is very limited, the type of work will be substantially similar making it very simple to determine if there is a discrepancy in pay between register clerk employees who are white male and minorities.  If there are, then there better be a good explanation by the employer, i.e. length of employment, experience, no write-ups, etc.

However, once you get into a situation where the employees jobs vary and involve discretion and individual judgment, it can become more difficult to decipher if the jobs are similar.  In addition, in jobs involving discretion by the employee, pay raises may be based on the quality of the independent discretion by the employees, with those making better decisions getting better pay raises.  These are all factors that can make the law difficult to know if it is being violated and costly by employers to prove the reason(s) for their salary decisions.

Harassment Training for Supervisors

Employers with 50 or more employees must provide sexual harassment training within six months of the hire date of individuals hired to supervise employees.  In addition, the training must not only include sexual harassment training, but training related to bullying and harassment based on gender identity.

If you have any questions about the new laws being implement in 2018, please contact us at The Rinka Law Firm.  Our phone number is 310-556-9653.

I Have a Judgment. Now What?

As anyone can tell you that has been through a lawsuit, it is a long, challenging and arduous experience.  Starting from the filing of the complaint, serving the defendant(s) with the complaint, conducting written discovery and depositions to the trial, there are many obstacles in the way of obtaining a judgment against a defendant.  Assuming, for purposes of this article, that you have overcome the legal hurdles necessary to obtain a judgment; congratulations, you now have another fight on your hands. Continue reading

What is a Class-Action Lawsuit?

A class action lawsuit allows a civil lawsuit to be brought by numerous plaintiffs, either individuals or business entities, against one or more defendants.  The purpose of a class action lawsuit is to make the resolution of similar claims by multiple plaintiffs against defendants more efficient for both the courts and the parties. Continue reading

How does uninsured/underinsured coverage work?

While it is illegal to drive in California without liability insurance coverage, unfortunately, due to the number of California drivers, there are many individuals who drive without insurance.  In order to protect yourself from losing compensation for injuries suffered in a car accident with an uninsured driver, you can obtain uninsured/underinsured motorist coverage. Continue reading

California Statute of Limitations

The statute of limitations sets forth the time limit an individual or company has to file a lawsuit from the date of wrongdoing.  The length of time a party has to file a lawsuit from the date of wrongdoing depends on the nature of the lawsuit, e.g. personal injury, breach of contract, etc.   Below are the current California statute of limitations for the most common types of lawsuits. Continue reading

Exempt v. Non-Exempt Employee in California

When you are hired by an employer as a regular employee, depending on your job duties you will be classified as either an exempt employee or non-exempt employee.  The primary difference between an exempt employee and a non-exempt employee is that an exempt employee is not paid overtime nor is the employer required to give the employee rest periods and scheduled lunch periods. Continue reading

Loss of Earnings due to Wrongful Termination

In order to bring a lawsuit for wrongful termination, the terminated employee must show that s/he was terminated due to an illegal reason.  In California, examples of illegal reasons to be terminated include, being fired due to one’s race, religion, gender, sexual orientation and/or disability.  If a fired employee is able to establish that s/he was terminated for one of these reasons, then the fired employee would be entitled to certain damages. Continue reading

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