Law Office of Rick Morin

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Missed Meal Period Premium Pay

The California Labor Code requires employers to provide employees with meal and rest periods. It is not uncommon for employees to file suit against their employers for depriving them of the proper rest periods and breaks. Read on to find out more about missed meal period liability.

Enforcing Rest Breaks

Employers need not “ensure” that no work is performed during a meal period. So long as an employer relieves the employee of all duty, the employer is not liable for a meal period premium if the employee chooses to work. There is one exception: unless the employer deters or discourages the employee from taking the meal period.

If the employer knew or reasonably should have known the employee was working during the meal period, the employer will be liable for payment of the employee's regular (or overtime) wage for that time worked. [Brinker Restaurant Corp. v. Sup.Ct. (Hohnbaum) (2012) 53 C4th 1004, 1034-1041, 139 CR3d 315, 338-343].

As a business owner, you should ensure that your employees are paid for the lunch break if you discover that they are working through their lunch break.

What if an employee chooses to work through their break?

Sometimes employees will choose to work through their meal period at their own discretion. As long as they are being paid for all of the time that they work, the employer will not have violated the holding in Brinker.

However, an employer must clearly communicate to the employee that they have permission and authorization to take a break. They must also not take any action that would encourage the employee to forego the break.

Meal Period Premiums

Should an employer interrupt or otherwise fail to provide a meal or rest period, the employer must pay an additional hour's wages that day. This is in addition to paying the employee for all hours actually worked. This is what the courts refer to as a "meal period premium."

In a lawsuit, an employee can receive up to a maximum of four years’ worth of additional hours of pay for missed breaks. Therefore, the hours for which an employee can claim premium pay can really add up in a lawsuit.

As a final note, meal-period premium payments to employees are not included in the 'rate' used to calculate the employee's overtime pay. [Rubin v. Wal-Mart Stores, Inc., 599 F. Supp. 2d 1176, 1177 (N.D. Cal. 2009)]

This means that employers should not include any meal period premiums in their overtime calculations.

Complying with the California Labor Code can be tricky. Contact my office at (916) 333-2222 to schedule a consultation to discuss your businesses' compliance with meal and rest period laws.