California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

Tired? Stressed? Need a break? Well, it is your employer’s duty to provide you with one. Many workers assume that they must work consistently during the hours required by their employer. Fortunately, this is not the case. In California, according to the Industrial Welfare Commission Wage Orders, employers are required to provide employees with a rest break of at least 10 consecutive minutes for each 4 hours worked; however, a rest period is not required for employees who work less than three and one-half hours. Generally, rest periods should occur in the middle of each work period. Because rest periods are considered as time worked, an employer must pay for rest breaks. Also for this reason, employers may require employees to take their rest break on the employer’s premises. The employer is mandated to provide a suitable resting place separate from toilet facilities. An employee is not required to take a rest break and may skip a break as long at the employer does not promote it. There are several exceptions to the “rest period” rule, including employees of 24-hour residential care facilities and swimmers, dancers, skaters, and other performers whose job requires strenuous physical activity.

If your employer failed to provide or pay for rest breaks, you are entitled to one additional hour at your regular rate of pay for each day the rest period was not permitted.
According to the holding by the California Supreme Court in the case of Murphy v. Kenneth Cole Productions, 40 Cal.4th 1094 (2007) and Labor Code section 226.7, a claim for violation of rest breaks must typically be filed within three years.  As such, it is wise to take action early. Your first step should be to contact a California labor law attorney to ensure you are able to collect lost wages and penalties as far as 4 years back.

If for some reason you are unable to find a California employment attorney willing to accept your case you can also file a wage claim with the California Division of Labor Standards Enforcement (DLSE). The DLSE will typically only reclaim lost wages as far as 3 years prior and further penalties are at their discretion as well. Your claim will be assigned to a deputy labor commissioner who will determine whether there should be a conference, hearing or dismissal of the claim. If the deputy determines that a hearing is warranted, then the parties will testify under oath and the Labor Commissioner will serve an order, decision, or award. In the event that an order, decision, or award is made in favor of the agrieved employee and the employer does not pay, the DLSE will have a judgment entered against the employer. Another problem may arise if the employer retaliates against you because you object to or have filed a claim against the employer for failing to provide required rest breaks. If this is the situation, you should likewise contact a California Labor lawyer first if your desired results are not reached you can also file a claim with the Labor Commissioner’s Office. 

Key Point:
If you believe you have been wrongfully denied a meal or rest breaks you should contact an experienced California labor law attorney. An attorney can guide you through the process and offer an unbiased evaluation of your particular situation.

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California labor law attorneys have been working “overtime” to assist employees in collecting additional pay for working split shifts. According to the California Industrial Welfare Commission, a split shift is defined as “a work schedule, which is uninterrupted by non-paid non-working periods established by the employer, other than a bona fide rest or meal period.”  If such a schedule is worked then the employer must pay a “split shift differential,” which is equal to at least all hours worked multiplied by the minimum wage, plus an extra hour of minimum wage (unless the employee resides at the place of employment). The rationale is that an employee should receive a higher wage in exchange for working outside the normal shift period. The split shift differential only applies to non-exempt employees who are compensated at or slightly above the minimum wage. If the employee is paid significantly above the minimum wage, then the compensation minimum is already met and the employer does not need to offer the extra hour of minimum wage. 

Some employers attempt to avoid paying the split shift premium by forcing an employee to take longer breaks or multiple breaks during the day. This issue is complicated because California law provides that an employer must provide meal and rest breaks. An employer may not employ an employee for more than five hours per day without providing a meal period of at least thirty minutes. However, if the employee works no more than six hours per day, the meal period may be waived by consent of both parties. A second thirty minute meal period must be provided if the employee works more than ten hours per day. If no more than twelve hours are worked per day, then this second meal period may be waived by consent of both parties if the first meal period was not waived.  For example, a work day may look like this:

8:30-1:30 (5 hours)
1:30-2:00 Required meal break
2:00-7:00 (5 hours)
7:00-7:30 Required meal break
Then any additional hours

Although the thirty minute breaks are mandatory, the law does not prohibit an employer from requiring longer breaks. If a longer break or additional breaks are provided, the question then becomes whether the break period is reasonable. If a two or three hour break is required, it is more likely that the schedule would be considered a split shift and the premium must be paid. 

If you believe you are working a split shift and not being fairly compensated, contact an experienced California labor law attorney for an unbiased evaluation of your situation.
 

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Despite a wave of class action lawsuits, California employers continue to find ways to deny their workers overtime pay. Under California law, all employees are entitled to overtime pay unless they are considered “exempt.” Exempt employees are typically professionals, administrators, or executives whose jobs require among other things, a high degree of independent judgment. They must earn at least two times the minimum wage (approximately $28,000 per year) and more than fifty percent of their work must consist of non-exempt duties such as clerical duties, customer service, or working along specialized technical lines. A common strategy for employers is to misclassify employees as managers or assistant managers in order to avoid paying overtime; however, it is the employee’s activity and not their job title that determines whether overtime is due. Unlike federal law that focuses on the “primary duty” an employee is expected to perform, California law is based on what work the employee “engages in” or actually performs. For example, if a “manager” in an automobile company spends more than half of their time working on the line – the same activities performed by non-exempt employees – that manager may be entitled to overtime pay for all time in excess of 8 hours per day or 40 hours per week.

Many times, an effective way to combat such tactics by employers is for an employee to file a class action lawsuit. If one individual files a lawsuit and prevails, the amount the employer pays will likely not be enough to change the employer’s wrongful practices. Most employers conduct a cost-benefit analysis. Typically, it is cheaper for them to account for paying one or two employees in a lawsuit than paying all employees overtime pay. On the other hand, if one worker brings a lawsuit on behalf of all similarly situated workers, the amount potentially owed by the employer will be significantly more substantial and thus give them an incentive to comply with the law. Furthermore, an employee who takes the initiative to file a class action will typically be awarded more money than those workers who sat idly by and did nothing. Many class actions for overtime pay are successful because employers do not keep a record of exempt employees’ hours or the activities they engage in on a daily basis. Even better, in California, a single class representative may initiate a California class action lawsuit.

In addition to “misclassification,” some employers will pay overtime but not at the required one and a half times the employee’s regular rate of pay. Other typical class action lawsuits include claims for missed meal breaks and rest breaks, failure to pay for business miles or travel time to/from different business locations, paying bonuses but not paying overtime, making employees pay for their uniforms, paying employees with a check that requires a fee to cash, and not paying for mandatory company meetings.

If you believe you are owed overtime or other pay, you could be awarded damages in a class action lawsuit. Contact a knowledgeable California labor law attorney to learn about your rights and receive a complete evaluation of your situation.
 

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The law requires that workers must be given time to rest and eat during the work day.

The question now before the highest court in California is, who is responsible to make sure the law is followed?

Abuse abounds in this area of law. Employers acknowledge that employees are entitled to normal breaks and meals during the day. At the same time some employers create an environment that systematically discourages breaks.

The result is that employees are forced to work through these breaks and many times must eat on the run.

In some lower court cases the employer has been able to persuade the judge that a policy allowing breaks is all that is required. Lawyers that represent workers have demonstrated that this leads to mass violations of the law. It is no secret that if an employee demands his right to rest and eat he is likely to find himself in hot water.

This fight has been taken head on by class action attorneys who are able to represent the entire employee base without putting individual workers at risk. This approach is an effective deterrent to employers who systematically violate the law. Employers are trying to prevent enforcement by taking the position that any violations, even if wide spread, should be handled on an individual and not a class wide basis. To sustain this position employers argue that it is the individual employee who has the power to decide to work thru his breaks. Therefore the employer states that it should not be held responsible on a class wide basis even if it is found to be a systematic problem. Under this view of the law; even if there are intentional violations then each employee must individually enforce his rights through the courts and this is obviously highly impractical.

In order for the law to be meaningful the Supreme Court is being asked to find that the burden is on the employer to prove that these breaks and meal periods are not only policy but also being enforced. The fact is that this does not create any meaningful burden on the employer as he has the ability to control and monitor.

The main cases now under review by the California Supreme Court are two Court of Appeal, court decisions in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 2008 WL 2806613 (Cal. Ct. App., July 22, 2008), and Brinkley v. Public Storage, 2008 WL 4716800 (Cal. Ct. App., October 28, 2008).

Your employer must make meal breaks available to you if you are a non exempt employee (an employee who is eligible to receive overtime pay). Failure to provide a meal break obligates an employer to pay non exempt employees one hour of pay.

The Law:

An employer must pay a nonexempt employee an hour's pay for failure to provide a meal or rest period.

An employer who falsifies employment records is in serious trouble under a recently enacted California statute, As of January 1, 2009, makes it is a crime for an employer to require an employee sign-off on any record of hours worked that the employer knows to be false.

This provides added protection where managers force employees to sign statements regarding their hours worked knowing at the time it is untrue or where they alter time cards.

Strategy:

The fact is that over time the right to back compensation, interest and penalties add up to big dollars especially if it has occurred over an extended period of time. You are permitted to recover for missed meal and breaks for a period extending back over 4 years from the time you file your claim in court.

It is easy to get sound advice and an estimate of how much you may be owed by contacting a qualified California labor law attorney. Many of these matters are taken on contingency so you do not have to pay for representation unless you recover on your claim.

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