I currently work at a restaurant that is not paying me overtime nor are they giving me work-free meal breaks. I work approximately 12 or so hours, and I did some research online. I found out that there is a penalty that my employer has to pay? I believe it is one hour's pay for the uninterrupted meal break. However, my question is, if I skipped 2 meal breaks, does my employer have to pay me 2 hours worth or is it one penalty per day? Does this apply to rest breaks as well?
Employment / Labor Attorney
That's a very good question. An employer who fails to provide an employee with one or more of the required half-hour, uninterrupted meal periods must pay that employee one additional hour of compensation at the employee's regular rate of pay. If you work 12 hours a day, you should get two uninterrupted meal periods of 30 minutes each. If you miss one, you get one extra hour of pay. If you miss two, you still get only one extra hour of pay for that day.
The rule is the same for rest periods. In a 12 hour day, you should receive three rest periods of a net ten minutes each. If you miss one or more, you should receive an extra hour of pay.
There is a dispute about what an employer must pay when it does not provide meal or rest periods. Attorneys who represent employees, as I do, will tell you that they should receive one hour of pay for the missed meal period(s) and one hour of pay for the missed rest period(s). Attorneys who represent employers wil tell you that it's one hour max per day, even if the employee misses both meal and rest periods. The California Supreme Court has not yet resolved this question, but I think it is pretty clear that it will be resolved in favor of employees.
If you wish to speak with an attorney about your situation, you can contact our office. The California Employment Lawyers Association (CELA) maintains a database of such lawyers on its web site, www.cela.org. You can go to the web site and search for an attorney in your area. You also can call your local bar association for a referral.
Disclaimer: This answer does not constitute legal advice and cannot be relied on, as each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
Employment / Labor Attorney
Not only is there the issue of compensating you for failure to provide meal and rest breaks there is also the issue of the failure to pay overtime. Our firm handles wage and hour cases, if you'd like a free consultation contact me at my office at 213-626-0571. You can also get information on my firm at www.rkmlaw.net.