Wage and hour-related employee disputes are becoming more common and more expensive for California employers. 6 of the 10 most expensive wage and hour class actions settled in 2019 were settled in California (according to the 17th Annual Workplace Class Action Litigation Report). So, it’s more important than ever for employers to develop strong processes to achieve wage and hour compliance.
One component of wage and hour compliance is ensuring employees take their full breaks.Here are some steps you can take to improve your company’s compliance with break requirements:
What to do if hourly employees aren’t taking their mandatory breaks
Use an electronic timekeeping system.
Your corporate timekeeping system should allow hourly employees to easily clock in and out when they arrive and leave, including clocking in and out for meal periods. Be aware that the system should not round the arrival time and departure times to ensure accurate tracking. While California law doesn’t require employers to use any particular system, it is generally recommended that employers use electronic timekeeping systems. Electronic systems can reduce mistakes, make time tracking easier, and streamline storage and retrieval of timesheets. Many timekeeping software providers also monitor compliance and can automate the process of flagging violations.
Train hourly employees – and supervisors.
Hourly employees should be trained to ensure that they know and understand their meal and rest break entitlements. This training should be provided as part of the onboarding process, and reiterated at least once each year.
Supervisors, management, and HR should also receive regular training about the importance of compliance with the meal and rest break requirements in California. They should know and understand their obligations, including regularly reviewing timesheets, and they should promote a culture of compliance. To do so, supervisors should ensure that hourly employees aren’t pressured to skip breaks and are encouraged to report violations as early as possible.
Make it clear when an employee is on a break.
It should be clear to other employees when a person is on a break. This empowers other employees to respect their entitlement to the meal or rest period and promotes a culture of compliance.
Employers should encourage employees to spend time away from their desk during their meal and rest periods. You should also create visual cues so team members know when a person is on their break. Consider:
- An ‘On Break’ status on Slack or other similar communication software.
- Create ‘On Break’ signs for employees to place on their desks during their meal and rest periods for on-site workers.
Send regular ‘reminder’ emails to hourly employees.
You should schedule and send regular reminder emails to your hourly employees about their meal and rest break entitlements, as well as your internal processes for employees taking their breaks. Supervisors should also have access to template emails for employees who are not taking the breaks to which they are entitled, so they can easily send them out if/when they notice any non-compliance.
Discipline employees who fail to take breaks.
Your hourly employees may be disciplined for failing to take their breaks. Appropriate disciplinary action might include:
- Coaching on time management and/or the requirement for hourly employees to take mandatory breaks.
- A verbal warning.
- A written warning.
Employers should be aware of any legal implications of disciplinary actions taken against employees. Discipline should be consistently applied to all employees by supervisors, HR and management, and hourly employees should be aware of the consequences of failing to take a mandatory break in advance of any disciplinary action.We strongly recommend submitting any disciplinary policies for legal review by a qualified attorney prior to implementation. .
Pay the penalty the when breaks aren’t provided.
If an employer does not provide an employee with a mandatory meal period, the employer must pay one additional hour of pay at the employee’s regular rate of pay. You can read more about the premium pay calculation for missed meal and rest break violations in California here.
Employers must pay the penalty for every missed meal period. Your pay formulas should be modified to calculate meal and rest break premiums at an employee’s regular rate of compensation, as required for overtime purposes.
Require break attestation on employee time cards.
Hourly employee time cards should clearly show the hours they have worked and that the meal periods were provided. The time cards should contain a statement with a signature line confirming that employees have correctly recorded all time worked and have been provided with the mandated breaks. Employees should review and sign these time cards before they are submitted to payroll.
Employers should regularly audit the time cards to ensure employees are being compensated for all hours worked including overtime and that the employer is paying meal period premiums if applicable.
Implement a robust policy detailing meal and rest period obligations.
Finally, you should have a robust policy that clearly details how, when, and why your hourly employees should take their breaks, as well as formal processes for lodging complaints about non-compliance. Employees should sign the policy, confirming that they have read it, and be given a copy to retain for their records.
If you need assistance developing your workplace policies, get in touch. We’re here to help!
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