My boss told me that my break and lunch started from where I am working in a hospital. We have designated lunch room and we must use it . If it takes 5 minutes to get to the lunch room and 5 minutes to return to work site . do I only get a 20 minute lunch and a 5 minute break ?
Employment / Labor Attorney
Your boss is incorrect. Employees must be allowed the full 30 minutes (net 30 minutes) for lunch and the full 10 minutes (net 10 minutes) for each rest break . . . especially if the employer requires employees to eat somewhere that is 5 minutes away!
The Division of Labor Standards Enforcement (DLSE) enforces California wage and hour laws; in DLSE Opinion Letter 1986.01.03, the DLSE said the rest breaks must be “net” ten minutes, which means travel time to a time clock or a break room cannot be part of those ten minutes.
The DLSE and the courts often interpret an employer's failure to provide employees with their full break time (net 30 or 10 minutes, respectively) as if the employer did not provide the breaks at all, subjecting the employer to penalties of one hour's pay to the employee for each day on which a meal break is not allowed, and an additional one hour's pay for each day that one or both rest breaks are not allowed.
Even if your employer is violating the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
So when your employment with this employer ends you can PROBABLY pursue a wage claim or lawsuit if you are not paid everything as required. Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your TIME LIMITS. Please do not rely on general information from a public site such as Avvo.
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. Keep all this at home, not at work, to make sure it remains private.
For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of each breaks (meal or rest). Time spent walking to or from a time clock or break room is considered work time, not break time. Many people find it helpful to keep this information on a calendar.
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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. ***
3 lawyers agree
Employment / Labor Attorney
Marilynn is absolutely correct. You are entitled to 30 minutes of uninterrupted time, which would include your transit to and from the only approved location for the taking of your lunch.
Good luck to you.
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