If your company doesn’t have a strong meal and rest break policy, it may get eaten alive! Ever since the pivotal Brinker court decision in 2012, California law has been clear, but let’s review it again.
- Must “provide” a thirty-minute unpaid meal break to employees no later than the end of the fifth hour of work (unless six hours of work ends the day, wherein the employee can waive the meal break);
- Are not required to “ensure” that the employee isn’t performing work during the break (provide the break, not police it);
- Must pay “premium” pay, equal to one hour of pay at the employee’s regular rate, if a meal period is not “provided – in addition to the straight time pay for the actual time worked.
A recent case, Donohue v. AMN Services, LLC, reaffirms that employers are only obligated to provide the meal break. If the meal break is provided but the employee chooses to work instead, no premium pay is owed - - only straight time pay for the time worked.
Employee Choice or Employer Failure?
The Donohue case involved a healthcare staffing company which recruits nurses for temporary assignments. The company, AMN, employed Kennedy Donahue as a nurse recruiter in its San Diego office. During the first few weeks of Donahue’s employment in 2012, AMN’s timekeeping system assumed that any time a meal period was missed there was a meal break violation and automatically included one hour of premium pay in addition to straight time pay for the time worked.
After the Brinker decision, AMN’s timekeeping system changed. When a meal break was missed, shortened or delayed, the system would require the employee to choose from one of three options on a drop down menu and pay accordingly:
- The employee was provided (a meal period), but chose not to take a timely 30-minute meal period -- AMN would not pay the meal period premium pay.
- The employee was provided a timely 30-minute meal period, but chose to take a shorter/later break - - AMN would not pay premium pay.
- The employee was not provided an opportunity to take a timely 30-minute meal period—AMN would pay the full one-hour premium pay.
On 31 occasions, Donahue selected Option 1 and she never claimed that AMN failed to provide her with the meal period.
AMN also had a written policy stating that employees are required to accurately record their time; clock-out and clock-in for meal periods; report any missed meal periods and if the meal period was provided/not provided
Consistent, Compliant Policies Save the Day
Among other claims, Donahue sued claiming she wasn’t properly paid for her meal breaks and that any meal period that is missed, shortened or delayed entitles the employee to premium pay.
The court, reaffirming Brinker, disagreed with Donahue’s claims. By providing the employee with the choices in the drop-down menu, “AMN’s policy at issue complied with Brinker.” The court reaffirmed that the employer’s obligation is to provide the meal break by relieving the employee from duties; the employee has the liberty to use that time as he/she likes, including doing some work. AMN met its obligation by:
- Having a compliant meal and rest break policy and timekeeping system;
- Requiring employees to accurately record time and tell AMN if a meal period was missed, shortened or delayed;
- Paying premium pay for any violation.
Review Your Policies and Practices. Employers should take a look at their meal and rest break policies to make sure that they are compliant with the law.
Check your timekeeping systems/software and consult with any payroll provider to make sure their practices are compliant! Your company is ultimately accountable for any wage and hour violation.
Some other important policies and practices include:
- Require employees to accurately record time worked, including recording meal breaks
- Require employees to acknowledge the accuracy of their time records
- Require employees to inform management/HR/payroll if a meal period is missed
- Meet your premium pay obligations if a meal period is not provided
Before using a new payroll vendor, take a look at their practice and the format and content of their wage statements. Check out our Payroll partners. If you have been using one vendor for a while, consider a self-audit to make sure that there isn’t a pattern of payroll/paystub errors—perform an audit with an experienced HR professional (call CEA!) or legal counsel.