meal periods

[morton36]

What is the name of your state?California
Could you help me clarify what my rights are concerning meal periods? My workload was such that I found it necessary to work during my lunch break approximately 4 times a month for 2 years. My manager either was unaware or turned a blind eye. Do I have a case for getting paid for these hours even though I no longer work for the company in question?
Also, my position required a considerable amount phone calls. On the days that I actually took a lunch break, I was expected to receive business calls during my lunch. Is a meal period legally provided for me if it is interrupted by business calls that I was pressured to take? Any recourse available?

 

[JETX]

My workload was such that I found it necessary to work during my lunch break approximately 4 times a month for 2 years. My manager either was unaware or turned a blind eye. Do I have a case for getting paid for these hours even though I no longer work for the company in question?

In my opinion, no, for several reasons. Some are:
1) Your post says that the 'manager' was not aware of your working during that period, so it was not 'ordered or expected'. As such, the fact that you CHOSE to 'eat at your desk and answer your phone' (which is likely the scenario you describe) was not compensable.
2) Your 'work' was sporatic at best. A very vague 'approximately 4 times per month' would be very hard for you to PROVE.
3) You no longer work there.

 

[pattytx]

Were you an exempt or a nonexempt employee? How long has it been since you left the company?

If you were nonexempt, there may be a possibility you are owed compensation if the SOL of limitation has not run. See here:
http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.gov/cfr_2004/julqtr/29cfr785.11.htm

Work not requested but suffered or permitted is work time........The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.

 

[morton36]

I was a non-exempt employee. I left the company in February of this year. I am considering filing an unpaid wages claim, and I am getting conflicting information as to wether this would be a wage issue or a penalty issue. Can I add 'unprovided meal periods' to a wage claim? I think of it as 'working off the clock". Thank you for your help.

 

[pattytx]

The one-hour penalty for not providing the proper meal period to a California employee is paid to the employee, not the state. You do not need to add that to your claim. It is a given if your claim is for unpaid wages due to working through, your meal period, in effect, giving you no meal period at all. It is a wage issue first, however.

Let's say you were supposed to work 8-5 with an hour lunch. You did not take your lunch and worked through the time for all 5 days in the work week, for a total of 45 hours. You would be owed 40 hours regular pay, 5 hours overtime pay at 1.5 your regular rate of pay, and 5 hours "penalty" pay at your regular rate of pay. The state will take all of this into consideration when reviewing your claim.

Just thought of something, though. Do your time cards/sheets/reporting reflect that a lunch was taken or that is was not taken?

 

[JETX]

The one-hour penalty for not providing the proper meal period to a California employee is paid to the employee, not the state. You do not need to add that to your claim. It is a given if your claim is for unpaid wages due to working through, your meal period, in effect, giving you no meal period at all. It is a wage issue first, however.

Sorry, but unless you have some information not in this thread, I disagree.

There is NOTHING in this thread to even suggest that the writer was required or requested to 'work' during lunch. I find it far more likely that he/she was simply eating at his/her desk.... and answered the phone when it rang. If that is the case, it is NOT compensatory..... or actionable.

So, lets ask the writer.... were you ordered, requested or expected (which?) to work during lunch???

Also, I think that any claim would be impossible to prove or to determine what hours were worked..... especially since the writer says "I found it necessary to work during my lunch break approximately 4 times a month for 2 years.".

Let's say you were supposed to work 8-5 with an hour lunch. You did not take your lunch and worked through the time for all 5 days in the work week, for a total of 45 hours.

Define 'worked'?? If the employee chose to sit at his/her desk and play 'Freecell' on the computer during lunch. That is NOT work. And if during that 'free hour', the phone rings and the employee picks up the phone thinking it is his/her 'sweetie' and it ends up being a customer. Is that work??
Sorry, Patty.... but at this time there is simply no way that you can make statements of fact..... without the facts.

 

[cbg]

Jetx, if I am not mistaken CA is one of those states where an employee cannot waive their right to a lunch break even if they choose to. If so, the fact that that he was not requested or required to work through lunch does not mean that the company doesn't have to pay him for it.

If he's a non-exempt employee, he has to be paid for all the time he works, regardless of whether it was required, requested, or even authorized.

 

[JETX]

Jetx, if I am not mistaken CA is one of those states where an employee cannot waive their right to a lunch break even if they choose to. If so, the fact that that he was not requested or required to work through lunch does not mean that the company doesn't have to pay him for it.

And what you both seem to be missing is.... there is nothing to even suggest that he wasn't at lunch.
1) He would have to PROVE that he worked duing lunch, he can't.
2) He would have to PROVE that his employer KNEW that he was 'working', there isn't.
3) He would have to PROVE that he was 'working' through lunch at his employers request/knowledge, he can't.

There is NOTHING in this thread to suggest anything other than he was sitting at his desk, eating his lunch and answered the phone. Hell, there isn't even anything in this thread to say what 'work' was done. He could have just taken a message for someone. Sorry, but I find it hard to believe that ANYONE would award him pay for such informal, non-required, not ordered or expected 'work'.
After all, there is NOTHING to suggest that the writer couldn't have gone and sat in the stairwell to eat.... and then not 'worked' at all!!!

 

[cbg]

Jetx, how often have you had to deal with the DOL in CA?

He doesn't have to prove anything. The employer has to prove that he didn't work.

 

[JETX]

Jetx, how often have you had to deal with the DOL in CA?

Luckily, never. How about you??

In any case, there is NOTHING in the writers post to even suggest what 'work' he claims to have done.
So, to the writer:
1) What work do you do?
2) Did the employer ask or otherwise authorize your 'unscheduled' work?
3) How long were you lunch periods (15 minutes, 30 minutes, one hour, etc.)??
4) How much was the LONGEST time you worked during this lunch period?

And finally, both of you were wrong!! The California law only requires a THIRTY MINUTE meal break in a five hour work day... not an hour.

He doesn't have to prove anything. The employer has to prove that he didn't work.

Sorry, but I find that hard to believe. If it were true, the CA courts would be clogged up with everyone claiming to have worked more than 40 hours.... and forcing the employer to have to hire a complete new staff to try to document hours worked.

Also, how would anyone expect an employer to try to prove an untruth?? Simply cannot be done.

 

[cbg]

Yes, I have had dealings with the CA DOL. They are extremely employee-biased; the employer is assumed to be wrong until proven otherwise, and that proof had better be iron clad.

And I never said that CA required a 60 minute lunch.

 

[pattytx]

I stand corrected. California requires a 30-minute meal period if the work day is at least 5 hours. If the work day is completed in 6 hours, the meal period may be waived in a written agreement between the employee and the employer. However, if the work day is more than 6 hours, the meal period cannot be waived, even if agreed upon.

The hook here is actually the FLSA regulation that I quoted regarding "suffered or permitted to work" and the employer "knew or should have known" that employee was, in fact working. If an employee was working during their lunch period, my experience is that it is assumed the employer (supervisor) should have known; that is a responsibility of the supervisor.

I also managed a payroll department for a large company in California for many years, as well as large companies in other states with operations in California. cbg's experience is mine as well. The employer will be the one to have to prove that the employee did not work, not the employee proving that he did. At least, that is what has happened with claims brought against companies I have worked for with California operations.

 

[JETX]

In any case, most of that changed last month.
See: http://www.ecjlaw.com/CM/EmploymentLawReporter/EmploymentLawReporter253.asp

 

[cbg]

The new regulations do not appear to have been finalized or put into effect yet. At least, no effective date is given in the link.

 

[morton36]

First let me say that the assumptions made by JETX about my work and what I do on breaks is incorrect. I worked at a retail food store where I was the grocery buyer. We have a break room. I eat in it. Our secretary answers the phone. When someone asks to speak to the Gorcery Buyer, I am paged and expected to go find a phone and take the call. The scenario JETX describes questions my work ethic and my character, without knowing me. Not cool.
I have not seen my time card/clock out records. Since I no longer work there I will request them shortly. They wont reflect my unpaid labor. The time clock automatically takes out 30 minutes if it is less than that, and if I didn't clock out at all for lunch, the secretary would apply a 30 minute break manually.(is that legal?)
I was not requested or drdered to work during lunch. It just became the norm. To correct the JETX' defenition of 'worked', part of my job is to submit orders to a distributor. This is done electronically via e-mail. I often had to do this during lunch since I was pressed for time. The orders are still in their computers, along with what time they were submitted. If they were submitted during my lunch, I would think that would prove that I worked during lunch. At the very least, it would provide a basis for a claim.
Where can I find regulations on time clock records?