Legal Question in Employment Law in California

Overtime and Break Time

I work for a company that has never instructed me, or any other employee, to ''take a break''. Without losing my job, what is my recourse? Is what they are doing clearly illegal?

In a recent sales slump our company stopped paying California mandated time and a half for overtime. Can they do this legally? Again, what is the recourse?

Asked on 8/10/05, 6:06 pm

2 Answers from Attorneys

Frank Pray Employment Law Office of Frank Pray
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Re: Overtime and Break Time

Oh, how the heart of a class action attorney flutters at the thought of industry wide violations like these. The way you address this problem depends on the numbers of other employees affected like you, and over what period of time.

The CA Labor Code Private Attorneys General Act of 2004 enables individuals to recover 25% of the civil penalties (1 year statute of limitation)previously only recoverable by the State of California. The incentive for attorneys is the new statutory provision for recovery of attorneys fees and costs. Of course, the number of employees is one factor. Generally, I look for at least 50 employees so that the penalty per violation for each day begins to justify the effort of litigation. The problem is that a judge has the discretion to award less than the full penalty, and so the outcome is unpredictable.

You are entitled to a 10 minute break roughly mid morning and mid afternoon. You're also entitled to a 30 minute meal break.(This meal break can't be waived unless you work less than 6 hours per day. See Labor Code Sec. 512)

The Commissioner has issued regulations concerning the duties of employers to provide these breaks. Is the duty to enforce the break, and is the employer strictly liable if the breaks do not occur? Or, is the employers duty to inform the employee of break rights, but not to assure the breaks are taken if the employee secretly skips those breaks (yes, some dedicated folks do that)? The Commission has taken the latter tact: you the employee are responsible to use your rights once the employer informs you of those rights. The problem of course is that subtle pressure by a supervisor to keep working through the break. The implied message is "or else". Well, for now, those are the regulations.

The "penalty" for violation of the 10 minute break regulation is one hour of extra pay for each rest period and each meal period not given or allowed. (See Labor Code Section 225.7)

Let's see. Assuming no breaks are given, or if given, they are less than the time required by law, that's potentially 3 hours of extra pay per day times 50 employees (or more) over the period of 250 actual work days. Let's assume $20.00 per hour pay rate average. That's $15,00 per employee, and for 50 employees is $750,000. Add to that the recovery of attorney's fees, and you see the incentive for employer's to communicate and enforce break times and meal times.

This "incentive" was the idea behind the CA Labor Code Private Attorneys General Act of 2004. Let's hope it works. The ironic fact is that rested, fed employees are more productive and more motivated. Maybe doing the right thing is good business after all.

P.S. Keep in mind that if you complain that you're not getting your breaks, and the employer trumps up some excuse to fire you in retaliation for your complaint, you will have an excellent case for "wrongful termination in violation of public policy".

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9/01/05, 1:16 pm
Terry A. Nelson Nelson & Lawless
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Re: Overtime and Break Time

As Mr. Pray indicated, you have a right to breaks, and there are monetary penalties available. However, you do not need a class action with lots of employees before taking action; if you are the only employee with such claim, you can file a claim with the Labor Commissioner for unpaid compensation and penalties. If your claim is worth enough to hire an attorney to help you, contact me to discuss.

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9/01/05, 1:42 pm

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