7

My employee works part time, five six hour shifts per week. The employee comes in at 1230 and works until between 6 and 7 pm, leaving when the work is done. The work is the closing of the business so the employee cannot leave earlier unless the work is done, but could be scheduled to come in later. CA state law requires and I have told my employee to take a 30 minute lunch off the clock every shift. The employee has refused to do so, does not punch out and eats snacks in the office once or twice during each shift. The employee says they do not want to waste 30 minutes of their time at lunch. They do not want to come in earlier, stay later or work the same schedule but be paid for 30 minutes less per day. My concern is not that the employee eat while working. I would be fine with this but CA law prohibits it. I tell the employee that taking the lunch period is not optional but so far discipline short of firing the person has not changed the behavior. What are my obligations in CA to force this person to punch out for a lunch period?

closed as off-topic by keshlam, Lilienthal, Justin Cave, paparazzo, alroc Feb 22 '16 at 2:30

This question appears to be off-topic. The users who voted to close gave this specific reason:

  • "Questions seeking advice on company-specific regulations, agreements, or policies should be directed to your manager or HR department. Questions that address only a specific company or position are of limited use to future visitors. Questions seeking legal advice should be directed to legal professionals. For more information, click here." – keshlam, Lilienthal, Justin Cave, paparazzo, alroc
If this question can be reworded to fit the rules in the help center, please edit the question.

  • 2
    This is a far better a resource than anyone here will be - dir.ca.gov/dlse/faq_mealperiods.htm – enderland Feb 21 '16 at 23:21
  • "What are my obligations in CA to force this person to punch out for a lunch period?" Is strictly a legal question that you'd need to discuss with a lawyer or other qualified expert. It's off-topic on this site. The link enderland provided is a good start. If you're asking how to enforce breaks when an employee is resisting your requests, that's something that's on-topic here. – Lilienthal Feb 21 '16 at 23:31
  • 3
    This answer cites a CA company that instituted a mandatory take the break or be fired policy; because the CA courts rulings were sufficiently lopsided in the complaining employee's favor that the company felt the exemption in the letter of the law was effectively non-existent in practice. – Dan Neely Feb 21 '16 at 23:34
  • Plus 1 but I still have to vote to close – paparazzo Feb 22 '16 at 1:20
  • 4
    @DavidHammen These laws are in place for a very good reason. Just because you have the fortune to work for a reasonable employer and have the ability to change employers if they force you to work unreasonable hours, that doesn't mean that everyone does. Does it suck for high-performers in office jobs? Sure. But wouldn't it suck a lot more for minimum-wage employees to be forced to go without a break in a 10-hour workday or risk losing their job? (I wanted to provide a counter-point to your comment, if you want to discuss this further please use chat.) – Lilienthal Feb 22 '16 at 8:53
2

From the California Department of Labor:

Q. If there is bona fide relief from all duty during a meal period and the employer relinquishes all control over the employee’s activities, but the employee then freely chooses to continue working, is the employer liable for meal period premium pay?

A. No, the employer would not be liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control (and no discouragement or coercion from the employer against taking the meal period). However, in this circumstance, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.

I couldn't find the original text cited by this article, but it appears that you can have the employee sign a one time agreement in writing that they are agreeing to have an on-duty meal period PROVIDED that your business requires the employee be active during his or her meal period:

  1. The employee voluntarily signs a one-time written agreement to work an on-duty meal period. The written agreement must state that the employee will be paid for his/her on-duty meal period. In addition, the written agreement must state that the agreement may be revoked by the employee at any time.
  2. The employee voluntarily verifies in writing that he/she agrees that the nature of the work prevented him/her from taking an off-duty meal period on the particular day.
  3. The employer verifies in writing that there were jobs in progress which prevented the employee from being relieved of all duty in order to take a 30 minute off-duty meal period.

Unfortunately, based on the information in your post, it does not appear that the nature of the work you are having the employee do allows this (does not appear that your business would be substantially affected by delaying completion of the work by 30 minutes & the employee does not appear to be 'manning a station' of any sort). The example provided by the DOL of someone who would meet the "on-duty lunch break eligibility criteria" was of someone who would be the sole employee manning a coffee shop with set hours.

So, to answer your question, your recourse seems to be to point to the law and tell them that unfortunately they have to take the lunch break or be fired.

  • 1
    Additional point: while I can't find the article again, I remember reading a post from a business owner who had a system of waivers in place to allow employees that wanted to do so to work through lunch. The problem is that those didn't hold up in court and any employee would be able to sue for damages/wages many years after having worked there by claiming that he wasn't allowed a break. So basically: it's just too risky not to enforce these breaks. – Lilienthal Feb 22 '16 at 8:59
  • 1
    @Lilienthal I think this (also linked in comments on the question) might be what you were thinking of. – Dan Neely Feb 22 '16 at 23:06
  • @DanNeely Ah yes, that's the one, thanks for linking it here as well. – Lilienthal Feb 22 '16 at 23:24

Not the answer you're looking for? Browse other questions tagged or ask your own question.