January 10, 2017
Review Your Rest Break Policy
By Gordon E. Bosserman
Right before Christmas, the California Supreme Court gave an early Christmas present to attorneys who represent employees by issuing a decision in Augustus v. ABM Security Services, Inc. that will make it easier to bring claims for missed rest breaks. Until now, attorneys representing employees have focused on meal breaks, because rest breaks are taken on the clock. So employers have been able to adopt policies that presume employees have taken rest breaks, since they are not recorded in their time records. As a result of this decision, employers are going to have to take additional steps to make sure employees are actually relieved of all duties during rest breaks.
Augustus involved a security guard company in which the guards were required to keep their walkie-talkies on during their rest breaks because they might have had to interrupt them to stop thefts or break ins. The Supreme Court ruled that requiring the security guards keep their walkie-talkies on meant that they were not relieved of all duties during their breaks, because they remained under the control of the employer in that they could have been called back to work at any time.
While this decision may make sense in the context of security guards who are required to be on call, the complication comes in applying it to other work environments. For example, what about a receptionist who does not leave the office to take a rest break? Will this be considered non-compliant if the receptionist can later show that he or she occasionally answered calls or greeted customers during the break? And what about a clerical employee who works for an ambulance company and takes his or her rest breaks at his or her desk? If he or she is the back up to the dispatcher, will this be considered non-compliant because the employee may have to cover for the dispatcher during an emergency? Augustus suggests that these two scenarios would be considered non-compliant, triggering the penalty of one hour of straight time pay for each missed rest break.
As you make your New Year’s resolutions, add reviewing your rest break policy to the list to avoid a claim for missed rest breaks.
Check Your Payroll
California’s wage and hour laws are quickly becoming the most common basis for employment litigation. Check your payroll now to make sure you are not doing things that might make you a target. Here is a checklist:
- Are you having your employees clock out for at least 30 minutes to take a meal break before the end of the fifth hour worked?
- Are you including commissions and other pay in calculating the “regular rate of pay” for purposes of paying overtime?
- Are you showing the now-required paid sick leave balance and usage on your employees’ pay stubs?
- Are you paying an hourly rate for non-productive time for employees who are paid on a piece rate basis?
- If you have more than 26 employees, are you paying $10.50 an hour (California’s new minimum wage), and have you raised your exempt employees’ fixed salaries to at least $3,640 a month?
Do this basic review now so you are not surprised later. Under California law, you not only do not get a break because a payroll error was inadvertent, but you will be hit with penalties on top of whatever unpaid wages may be determined to be owed. Happy New Year, indeed.