Last year, the California Supreme Court declined to answer two questions posed by the federal Ninth Circuit that would have given employers some guidance on meal and rest break policies. Because of this, it is unsettled whether an employer is in violation of the labor code if the employer fails to have a formal meal and rest break policy. Also unsettled is whether an employer’s failure to keep records for meal and rest breaks creates a presumption that meal and rest breaks were not taken.
Employees in California are not required to track their own rest breaks. Rest breaks are paid breaks of at least 10 minutes in length that must be given by the employer every four hours worked or major fraction thereof on shifts of at least 3.5 hours.
Meal breaks are typically unpaid and must be at least 30 minutes, and typically employees are supposed to clock in and out or otherwise track their meal breaks.
When employees do not clock in and out for meal breaks, employers often argue that they provided the employees with meal breaks but that the employees chose not to take them even though they are required. Even without a legal presumption that the employee was not provided with meal breaks, employers often struggle with this justification when there is no evidence that the employer ever reminded the employees to take breaks or to clock in and out for breaks.
Plaintiff-side wage and hour law attorneys have heard many excuses from employers for why their employees’ records do not reflect that workers were provided all meal breaks to which they were entitled, which is one for every five hours of work. Employees whose employers prevent them from taking breaks or fail to provide them with breaks should keep notes listing the days on which the employee was unable to take breaks. Employees should also consider consulting an employment law attorney about recovering compensation.