What Happens if I Miss My Meal and Rest Periods?
- posted: Sep. 05, 2018
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.
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.