Orange County Employment Lawyer Blog

Our Orange County Law Firm has been speaking to many employees regarding this issue. In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes. However, if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual written consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual written consent of the employer and employee only if the first meal period was not waived.

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. Additionally, if you sit at your desk or otherwise continue to work while you eat your lunch, that is not a "duty-free" meal period and you should receive your pay for that period.

If your employer discriminates or retaliates against you or wrongfully terminates you because you ask about not getting a meal period, object to what you believe to be an illegal practice, or because you file a claim or threaten to file a claim with the Labor Commissioner, please contact our firm to discuss your options.

It seems lately that my Orange County Employment Law Firm has had several calls about lunch break issues. Specifically, these California employees are being required to work through their lunch break due to the "nature of the job". This issue has come up several times recently as it relates to security officers. These employees are being told they cannot leave their post and as a result, cannot take a proper meal break.

As I discussed in a previous post about Labor Code Section 226.7 and lunch breaks, the law provides that an employee must get at least a 30 minute lunch break whenever they work for more than five hours in one workday. However, an employer may ask that an employee waive their right to a lunch break. This waiver must be in writing, and employees must be free to not sign the waiver. Similarly, if they do agree to sign it, they must be free to revoke the waiver at any time.

If you have not signed a waiver of your lunch break, your employer cannot require you to work through your lunch break. Such is often the case for security officers, who are told they cannot leave their post for lunch. If no relief security officer is provided, the security officer is still entitled to a lunch break (and by break, it needs to be duty free, not scarfing down a sandwich while sitting at your post working). If that lunch break is denied to you, you may be entitled to monetary penalties as result.

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
4. For submitting a worker's compensation claim from injuries suffered at work;
5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

As I have detailed in previous blog posts about labor code penalties, California has by far the strictest labor laws in the nation. Consequently, employers need to take all steps necessary to insulate themselves from employee lawsuits. One of the most important ways to do that is to have a properly drafted Employee Handbook. Having a properly drafted Employee Handbook may reduce an employer's exposure and liability in a lawsuit filed by an employee against the employer.

My Orange County Employment Law Firm has defended many employers and businesses in lawsuits filed by employees. The severity of many of those lawsuits could have been minimized if that company had an effective Employee Handbook in place. Additionally, some of those lawsuits may not even have been filed if the employees had a handbook advising them of their rights and obligations.

At a minimum, employers in California are required to provide to its employees certain workplace policies in writing. However, a properly drafted Employee Handbook suited to a company's specific business needs may also include items such as vacation pay or lunch breaks, which, though not legally required, will lessen the employer's exposure to lawsuits concerning those topics.

Examples of Employee Handbooks or Manuals can be found everywhere. However, one size does not fit all. I cannot urge employers enough to retain legal counsel who are well versed in employment law to properly assist in the formation of a handbook suitable to the employer's specific company.

I cursorily discussed Labor Code Penalties in a previous post. However, as it applies to lunch breaks and rest breaks, recent California case law has significantly impacted these issues. In this post I will discuss in greater detail the current state of lunch break penalties and rest break penalties.

Clients frequently contact my Orange County Employment Law Firm inquiring about lunch break issues. The law states that if lunch breaks or rest breaks are not provided as required by California law, claimants are entitled to more than just the unpaid wage for working through the lunch or rest break, they are also entitled to one hour or pay for each workday that a lawful meal break or rest break was not provided.

However, California Courts have recently directed its focus on the differences between ensure and provide. Previously, employers had a duty to ensure that its employees were taking a duty free lunch (duty free means just that, not working. So, sitting at your desk and eating lunch while answering the phone occasionally when it rings is not duty free). Thus, if employers did not ensure an employee was taking a duty free lunch, they were subject to the above described penalty if an employee failed to take a duty free lunch.

Recent case law has altered the definition, changing an employer's duty from ensure its employees were taking a lunch to simply that they provide the employees with the opportunity to take a duty free lunch. Thus, if an employer has a policy that all employees take a duty free lunch, and an employee does not do so, the employer is not liable for any of the above damages if the employer does not know the employee failed to take a lunch. So, recent case law has taken much of the bite of lunch break penalties away from employees.

Most wage and hour matters in California provide remedies in addition to the actual unpaid wage or damage in the form of Labor Code penalties. I will describe some of the more common penalties below.

WAITING TIME PENALTY

When an employee separates from an employer, whether by termination or resignation, he/she must be paid all wages that are owed at the time of separation. If fired, the employee is entitled to all wages owed at the time of his or her termination. If resigning, he or she must be paid all wages due within 72 hours of resigning. If all wages are not paid within these time constraints, the employee, in addition to being able to recover all wages he or she is owed, is also entitled to a waiting time penalty. California's waiting time penalty entitles the employee to receive up to 30 days of wages, which means just that - thirty days of wages, not just one month's pay.

ITEMIZED WAGE STATEMENT PENALTY

While working for any employer, every employee must receive wage statements that are properly itemized, which means the pay stub must contain certain specific items of information, most commonly the employee's gross wages, net wages, total hours worked, commission rate, piece-rate, pay periods covered by the check, and all deductions withheld, among other items. An employer's failure to provide pay checks with stubs containing this information may be liable for an itemized wage statement penalty. Such a penalty results in a penalty of $50 for the first violation, $100 for each subsequent violation - up to $4000 per employee.

MEAL AND REST BREAKS

If lunch breaks or rest breaks are not provided as required by California law, claimants are entitled to more than just the unpaid wage for working through the lunch or rest break, they are also entitled to one hour of pay for each workday that a lawful meal break or rest break was not provided.

MINIMUM WAGE PENALTIES

If an employer fails to pay an employee the California mandated minimum wage rate (currently $8 per hour), the penalty is $100 to each underpaid employee for the first violation, $250 to each employee for each pay period thereafter when there is a violation or underpayment.

UNLAWFUL DEDUCTIONS

When an employer unlawfully collects or deducts monies from an employee's wages, either in the form of a penalty or other such deduction, the unlawful deduction penalty is $100 to each underpaid employee for the first violation and $200 to each employee for each pay period thereafter where this is such a deduction, plus 25% of the amount underpaid.

There are of course other Labor Code penalties, but I have found these to be among the most common.