In elementary school, the lunch bell would ring at noon, and we'd all grab our Spiderman or Raggedy Ann lunchboxes and race out to the schoolyard. We'd wolf down our sandwiches, play a little kickball or hopscotch, and when the bell rang again, we'd head back to class. Employers may need such a system in order to comply with California's meal and rest break requirements.
California's laws on employee meal and rest breaks have come under intense scrutiny in the last few years. Court cases, legislative hearings and legal opinions have put the subject in the media spotlight, leading many employers to reexamine and update their own policies. Hopefully, all managers in California know that if his or her employees don't get out the door for a meal or rest period as required, the employer is on the hook for an extra hour's pay for that day or two. Learn more about the basics of meal and rest breaks.
The Law versus Reality
Nonexempt employees are entitled to a 30-minute, unpaid meal break that must begin no later than 4 hours and 59 minutes into their shift. If this meal break is missed or is less than 30 minutes, for any reason - even the employee's own choosing, the employee is owed an extra hour of pay no later than the next paycheck. However, if six hours of work will complete the day's work, the employee may voluntarily waive the meal break in writing.
Nonexempt employees must be provided with a rest break of no less than 10 consecutive minutes for each four hours (or major portion thereof) worked, occurring as near as possible to the middle of the work period. If employees are restricted in any way from taking a rest break, they are owed an extra hour of pay no later than the next paycheck. But employees can choose not to take their break without penalizing the employer (as compared to the meal break ).
Even when meal and rest break policies are updated to comply with the law and managers are trained about those policies, the reality is there are always a few employees who don't take meal and rest breaks as required. Some of those employees want to come in a half hour early or leave a half hour late and call it their lunch break. Others want to add their 10-minute rest break onto their half-hour lunch break and take 40 minutes straight. A few even take several 15-minute "smoke breaks" and figure that adds up to the same amount of time (as a 30-minute meal break), so it must be allowed (and sufficient to meet legal requirements and company policy).
Using a loud lunch bell when nonexempt employees must begin their break may not seem like such a bad idea!
It can be hard to look at a great employee, in fact one who decided to give up her lunch break to make sure an assignment was done on time, and tell her you're disciplining her for violating the meal break rule. Yet taking meal and rest breaks is a work rule, just like coming to work on time is a work rule. Refusing to take meal and rest breaks per the company policy is violation of a work rule as well as California law. If you had employees who refused to come to work on time, would you have any hesitation about disciplining them? Yet many managers hesitate to use the traditional methods of employee discipline (verbal warning, then written warning, then termination) for missed meal periods for fear of having to terminate dedicated employees who would be tough to replace. This is why it's important to discipline the managers first when their staff misses required breaks, than discipline the employees. These people are costing your company money!
Consider Creative Incentives
What else can be done when employees don't take meal and rest breaks as required? One creative answer is to look to what employees value and make some of those things contingent upon following the meal and rest break rules. For example:
Pay Raises: Make it a rule that to be eligible for a raise, employees must have complied with the meal and rest break rules in the previous year. Anyone with more than a certain number of violations would not be considered for a pay raise, or would receive a smaller raise.
Vacation: Give employees an opportunity to earn additional vacation or PTO days if they have no meal and rest break policy violations for a specified period. For example, Joe has not had any write-ups in the previous year for missed meal breaks, so he earns an extra vacation day. Remember, that day belongs to him now so it cannot be lost for any reason.
Holiday Pay: Similar to extra vacation or PTO, provide an extra "floating holiday" for employees who comply all year. Remember, that a floating holiday is treated as a vacation day under California law, so that day would vest and need to be paid out on termination if unused.
Raffle: Monthly or quarterly, put the names of the nonexempt employees who did not violate your meal and rest break policy in a hat and draw a name. The winner gets a gift card to a local store or restaurant.
Ensure Breaks Are Taken
How far must an employer go to make sure employees are complying with meal and rest break policies? The law, as it stands, puts the onus on employers to ensure employees take their meal breaks. Employers and their managers cannot impede, discourage or dissuade employees from taking meal and rest breaks, and must ensure they are taken.
We are again back to the lunch bell. Managers need to walk the halls at 4 hours and 59 minutes into employee shifts and make sure the employees stop working for at least 30 minutes. Some steps you can take are:
- Have a written policy that's in compliance with California law.
- Distribute the policy to all employees and have them sign a receipt that they have read the policy and agree to abide by it.
- Redistribute the policy at least annually.
- Train managers and supervisors about the importance of enforcing your meal and rest break policy.
- Let them know they do not have the option to waive meal periods or breaks without authorization.
- If possible, provide them with an incentive to make sure their departments are in compliance.
- Consistently enforce the policies, disciplining those who don't comply.
- Maintain documentation of the discipline.
- Remind employees frequently about your policy.
- Add a line or two in employee newsletters.
- Bring it up at staff meetings.
- Post a copy of the policy by the time clock.
Remember the schoolyard? Eventually, employees will come to understand that getting around California's meal and rest break laws is simply not an option and that recess was fun - so why not take it?