California Employers in Hot Water Over Rest Break Policies

In the latest in a never-ending string of wage and hour issues faced by California employers, a rash of class-action lawsuits concerning employer rest break policies are staring a large number of California employers in the face. Per their practice, California Plaintiffs’ attorneys have found yet another ambiguity in the state’s complicated Labor Code and Industrial Welfare Commission Wage Orders and have chosen to exploit employers who do not craft policies that go over and above what the law requires. Don’t be next.

Under California law, employees are required to be provided a paid ten-minute rest break for every four hours worked. Employers who do not provide the break, or hour of pay for each missed break, in addition to fines and penalties set forth in the law and implementing regulations. Further, there are mandatory attorneys’ fees set forth in the California laws for prevailing plaintiffs and 2-3 year statutes of limitations for filing these types of lawsuits (which are almost always filed as large class actions).

California law also requires employers to document all hours worked, including the required 30-minute unpaid meal period they must offer. However, the law is silent as to whether employers must document the rest period. This is what has gotten many employers into hot water in recent years and months. Indeed, many employees are creatively taking advantage of a presumption that they missed rest periods that can only be rebutted by employer evidence that they actually took the break. Even when the employer requires the employee to take the break the new “trick” is to claim the employer persuaded its employees to claim they took breaks they actually missed. When the evidence is purely based on testimony it becomes extremely difficult, if not impossible to rebut an employee claim that the break was not taken.

The solution is simple, and is the one Syntrio has recommended in its Wage & Hour training courses since their inception: require your employees to clock out and in for each and ever rest period they take. While this approach may seem silly given the unpaid nature of the break, it is still critical evidence that the employee not only took his or her break, but did so voluntarily. Of course, this will not prevent a lying employee, but when there are a group of employees who have been influenced by a Plaintiffs’ attorney it is much less likely all will lie in the face of documented
evidence to the contrary. The presumption will be rebutted and the odds of defense will shift to the employer’s favor. The practice could save you major headaches down the road.

Syntrio is a leader in both the employment law and ethics and compliance field, with an innovative philosophy towards compliance program design and engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our California wage & hour online courses and remember to follow us on Facebook, Twitter, Google Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

Written by Jonathan Gonzalez, Chief Counsel for Syntrio.