06/26/2014

Understanding the rules around waivers to meal and rest breaks


"Dear Practice Support" is a feature in the CDA Update (cda.org/update), where we highlight a dentist's unique employment question received by Practice Support.

Dear PS: I understand the new law allows my staff to waive their meal and rest breaks. Is this true? This is great news!

Answer: There isn't a new law but rather a recent court decision on the existing law. Previously, employers had to "ensure" employees took their breaks. The new decision stated employers must "provide" employees with required break periods, but need not "ensure" such periods are taken. Once the break is provided, there is no duty to "babysit" the compliance. Employers must permit employees to use the break periods.

However, there are no changes to the existing law that will allow employees to waive their breaks. The only situation in which employees may waive their meal break is if their work day will be completed in no more than six hours. In this case, both the employee and the employer must mutually agree to the waiver and ideally, it should be in writing.

To clarify the meal and rest break law in California: Employers must provide nonexempt employees an opportunity to take a 10-minute paid rest break for every four hours worked. You cannot schedule an employee to work more than five hours per day without providing a 30-minute meal break, which is unpaid. A waiver can only be signed if the employee works no more than six hours.

Don't get creative on your break policies. For example, don't put the 10-minute rest breaks at the beginning and end of the lunch break. And don't allow an employee to skip breaks in order to go home early. If you don't provide the employee with one or more rest breaks, you owe the employee one additional hour of pay. And if you don't allow the employee his or her meal break, it's another hour of pay. The additional pay for a missed meal or rest break must be included in the employee's next paycheck and in some cases of missed meal breaks, the employee may be entitled to overtime as well.

While there are a lot of misconceptions related to an employer's obligation toward breaks, the one item to remember is no matter how difficult or inconvenient it might be, by law, employees must be "provided" their mandatory breaks.

For additional information related to meal and rest break policies, find the Office Policy Manuals resource on cda.org/practicesupport and view the Meal Periods Q&A on the state's Department of Industrial Relations website, www.dir.ca.gov.





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