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What penalties does my employer need to pay for not keeping records of hours worked and meal breaks?

Los Angeles, CA |

I am a non-exempt employee. However, my employer does not have me clock in and out, and it always pays me as if I work 40 hour weeks, even though I often work overtime. My employer also does not have me record my meal break times, and I often am not able to take a full 30 minute meal break. Aside from the unpaid overtime and meal break penalties, are there any other penalties my employer would be liable for, for not having me clock in and out and not recording my lunch breaks?

Thank you!

Attorney Answers 5


  1. Best answer

    No additional monetary penalties for failing to keep time records, however, if/when you claim overtime pay and meal/break violations, since there are no time records, all you have to do is provide your best estimate and then your employer has the burden of proving that you are wrong. There are other ways to possibly add monetary penalties, call an employment law attorney to discuss.


  2. No. Certain presumptions will hurt the employer if they fail to keep accurate time records, but there are not separate financial penalties payable to the employee for failing to keep those records.

    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.


  3. If your employer is not paying you for time that you are working and/or not paying you at overtime rate for overtime you should file a wage claim.


  4. This is a fairly complicated inquiry. There are no direct civil penalties for failing to keep the records, failing to keep records of meal periods may raise the presumption that the meal period was neither taken nor waived, per the concurring opinion in Brinker v. Superior Court. While the concurring opinion is not binding, it certainly raises some possible methods to make establishing liability for meal period violations easier.

    There are also additional civil penalties that may be available, such as penalties for failing to provide accurate wage statements (if the wage statements did not reflect unpaid wages or meal period premium wages) and/or for waiting time penalties under Labor Code 203, depending on the factual circumstances.

    You should consult with an employment lawyer to discuss all of your options.


  5. Under Labor Code section 226, your employer is obligated to provide you with an accurate earning statement with your paycheck which must include an accurate count of the number of hours your work. So, there are civil penalties for 226 violations provided you can demonstrate you were "injured" by your employer's failure. Generally, not being able to figure out if you are getting proper overtime is good enough to demontrate injury. The penalty for violating section 226 is the greater of actual damages (probably zero) or $50 for the initial pay period in which the violation occurs and $100 for each subsequent violation for up to one year. The total aggregate amount cannot exceed $4000. You are also entitled to attorneys' fees and costs. This is not a penalty you can obtain from the Labor Commissioner, you would have to file in court. So, you would probably want to bring your OT claim and tack on the failure to provide accurate earnings statement with it.

    Good luck.

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