Meal periods – confusing and still unresolved

2010 may be the year for big changes in the legal requirements for meal periods – but not yet.

What is your organization’s policy on meal periods?  When talking with employers about rules in the workplace, meal periods always seem to be a hot issues. In general, employers must provide a meal break of at least one half-hour for every work period of more than five hours. But the laws are confusing and sometimes difficult to follow, especially if an employee doesn’t even want to take a meal break. Getting this right is important, since failure to properly provide meal breaks can result in penalties – for each workday you fail to provide an employee a meal break as required, you owe the employee one additional hour of pay at the employee’s regular rate.

Many employers, especially small employers like restaurants, or wineries with a small tasting room or cellar staff, find the meal period requirement to be very difficult to manage. I often hear that scheduling meal breaks is a hassle, results in overstaffing, and is a problem to enforce, since many employees would rather just “work through” – and be paid for – their whole shift. “Waiving” a meal period isn’t an option, except in rare circumstances, even if the employee volunteers to do so.

In 2008, a ruling by the Court of Appeals seemed to resolve these problems, by saying the requirement to “provide” meal periods mean to “make available” not “ensure”. This ruling seemed to give a great deal of leeway that employers and employees alike might appreciate. However, labor attorneys cautioned us to wait and see if this was the last step in the legal system before changing any policies. Good advice. The California Supreme Court will be hearing this case later this year. Hopefully, 2010 will be the year that meal periods will become easier to provide and schedule, and maybe it will become possible to waive meal periods. In the meantime, make sure you comply with the meal period rules, or you may face penalties. If you aren’t sure how to comply, work with a competent HR Consultant to develop a policy or consult your labor attorney.

1      Note: This article is intended to provide commentary and guidance on management policies, and is not intended as legal advice or as a substitute for legal counsel.