As Outside General Counsel Cooper & Huber, LLP, we’re often asked what an employer can do if their employee refuses to take a required meal break. It’s important to understand California law requires that non-exempt employees are provided with a 30-minute meal break for every five hours of work. If an employee works more than 10 hours in a day, they are entitled to a second 30-minute meal break. However, if an employer offers a meal break in a compliant manner and the employee chooses not to take it or take it differently, the employer is not required to pay premium pay.
Employers should note that while they are not required to police the break and ensure that employees take it at the correct time or for enough time, the failure of an employee to take timely and lawful breaks can create risk and potential exposure for the company. Employers must be able to prove that breaks were voluntarily skipped or taken in a non-compliant manner.
To mitigate this risk, employers should have clear written policies and procedures in place that document the requirement of meal breaks. Employees should sign off on their receipt of these policies and/or the employee handbook. This provides evidence that the employee was informed of their right to take a meal break and the consequences of not doing so.
In cases where an employee refuses to take a meal break, it should be documented in writing (e.g., an email to or from the employee) and kept as part of the employee’s file. Consider introducing a process to allow employees to sign off on their timesheets. Include a certification that the employee was offered all breaks and any non-compliance was due to their own choice, and also a reminder that if at any time an employee is required or encouraged by a supervisor to skip their break, they should immediately notify Human Resources. Ultimately, employers may need to write up employees for failure to follow the meal policy, and if non-compliance continues, terminate them for failure to comply with company rules/insubordination.
California meal break laws can be complex and failure to comply with them can result in significant penalties for employers. Employers must ensure that they have clear policies and procedures in place and properly document any instances of non-compliance to mitigate the risk of legal exposure.
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Disclaimer: This article is for informational purposes only and is not intended as legal advice. Every situation is different and you should consult with an attorney regarding your unique circumstances.
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