someone recently told me that i would have had to sign a meal wavier everyday i worked, for my boss not to have to give me breaks. does my boss owe me back pay for my missed breaks?
Employment / Labor Attorney
California employees are entitled to one 30-minute meal period if they work 5 hours or more in one day. However, the employee and the employer can agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30 minute meal break must be a full 30 minutes -- not 29 minutes -- and must be completely free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day. The meal period is unpaid.
Employees are entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time. The rest periods are paid.
Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.
Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.
Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.
Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.
The employer must make these breaks available to employees and cannot interfere with the employees’ freedom to take the breaks or discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.
If the employer has actually PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.
If you have not been allowed to take breaks, you can pursue a claim through a private attorney or through the DLSE. The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Employment / Labor Attorney
The waiver of the meal period is available in very narrow situations. However, if you had a legitimate meal waiver in place, it need not be signed every day.
A California employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes. However, if the total work period is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. This waiver need not even be in writing, but it is good practice to do so. Furthermore, union collective bargaining agreements can contain such waivers that will be applicable to all union members.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
As you can see from the thorough answers here, the your ability to recover penalties depends on two things, the actual hours worked each day and whether your employer actually prevented or interfered with your ability to take rest of meal breaks. Employees are not required to insure that you take your breaks, only that they provide the opportunity for you to take those breaks and not interfere with this right.
Whether to pursue this action will depend on the amount of potential penalties, whether you are afraid of getting fired, and whether not having this break creates a physical or mental hardship for you. Although it is illegal retaliation for your employer to fire you for complaining our pursuing an action, they may do it anyways. You must decide whether it is worth the risk, because a retaliation lawsuit will take time and there is no guarantee of success out that you will be able to find another job in the meantime.
One option is to wait until you are terminated or quit and then pursue an action. Then you won't have to worry about getting fired. Keep in mind that you can only go back three years from the date of your claim so you couldn't recover for any missed breaks further back than three years. Under unfair competition laws you may be able to go back for years.
I recommend that you consult with an employment lawyer now to confidentially discuss your options. Many of us offer free consultations and you should take advantage. Good luck.
Law Offices of Linh T. Nguyen 916.509.7200 Disclaimer: This reply is not intended to be and does not constitute legal advice or the establishment of an attorney-client relationship. I always recommend consulting with an attorney, especially since many attorneys offer free, no-obligation consultations.
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