An employee didn’t record on our break log that she took her second rest break and when asked, she claims she “forgot” to take her break. Our policy is that employees must contact their supervisor to get coverage for breaks. Do we owe a break premium penalty for this?
California law requires employers to provide a set amount of paid rest breaks and unpaid meal breaks depending on how many hours the employee works in the day.
The volume of breaks required creates regular opportunities for missed breaks. When that occurs, an employer’s responsibility will depend on the circumstances of the missed break.
Employers Must Provide Compliant Breaks
In Brinker Restaurant Corp. v. Superior Court (53 Cal.4th 1004 (2012)), the California Supreme Court set the standard for meal break compliance. A key point settled in Brinker is that employers do not have to “police” their employee’s meal periods to ensure no work is performed.
Instead, the California Supreme Court set out four factors to evaluate whether an employer has “provided” a compliant meal break. Those factors are that an employer:
• Relieved the employee of all duty;
• Relinquished control over the employee’s activities;
• Permitted the employee a reasonable opportunity to take an uninterrupted, 30-minute break; and
• Did not impede or discourage the employee from doing so.
The California Supreme Court followed Brinker with a decision in Augustus v. ABM Security Services, Inc. (2 Cal. 5th 257 (2016)) that applied these same factors to rest breaks.
So, if an employer provides compliant meal or rest breaks in this fashion, the employer does not violate California’s meal and rest break laws even if an employee works through some, or all, of the break.
Diligent Enforcement Still Required
Although employers are not required to “police” breaks, whether an employer did provide a compliant break will depend on the employer’s records, its policies and the employer’s actual conduct on the day the break was missed.
In a more recent case (Donohue v. AMN Services, LLC., 11 Cal. 5th 58 (2021)), the California Supreme Court set out a presumption that an employer’s time records showing meal or rest break violations will create a rebuttal presumption that the employer did not provide a compliant break.
Applied to this situation above, the employer’s log showing the employee not taking a second rest break creates a rebuttable presumption that the employer violated the rest break requirements for this employee on this workday.
Rebuttable Presumption
The California Supreme Court also affirmed, however, that the presumption is rebuttable by good evidence from the employer, such as a well-drafted and enforced meal and rest break policy as well as uncoerced affirmations from the employees that they were provided an opportunity to take the break.
In this situation, the employer might be able to rebut the presumption it violated the rest break requirement. It has a policy requiring employees to take the breaks, record the breaks and contact supervisors to ensure the ability to take the breaks. If this policy is enforced regularly, this is great evidence to rebut the violation.
Also, a documented affirmation added to the rest break log from the employee noting they were responsible for not taking the break will contribute to trying to rebut the violation.
In this case, the employer might not have to pay a premium for the missed rest break if the employee had the reasonable opportunity to take the break. However, this case study demonstrates that rebutting violations can be difficult, and employers should consult legal counsel in these situations to ensure the premium pay is not owed.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
