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Workers Entitled to Breaks or Extra Pay

November 05, 2000

Q: My boss makes sure I am busy at all times. My friends say I should get a 15-minute break every morning and afternoon. If I ask for these breaks, do I have to add another half-hour to my workday? This seems to defeat the purpose.

--L.S., Huntington Beach

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A: The law recently changed in this area.

For many years, nonexempt employees in the private sector have been entitled to one 10-minute rest break for every four hours they work. Under this rule, a nonexempt employee scheduled to work eight hours is entitled to two 10-minute rest breaks, which should be taken as close as possible to the middle of each four-hour work period.

Unlike meal periods, rest breaks are considered working time. In other words, you must be paid while you take your 10-minute breaks.

In addition to rest periods, employees are entitled to an unpaid 30-minute lunch break every five hours.

Unlike rest breaks, meal periods can be waived in limited circumstances. For example, if an employee is scheduled to work six hours, the employer and employee can waive the meal period. Similarly, if an employee is scheduled 12 hours in a workday, the employer and employee can waive the second meal period if the first meal period was not waived.

Unfortunately, some employers have discouraged employees from taking meal periods or rest breaks. In response to this problem, California has recently enacted new regulations imposing a monetary penalty if an employee is denied a paid rest break or an unpaid lunch period.

Starting Oct. 1, an employer who fails to provide a meal or rest period must pay every employee one hour of pay at the employee's regular rate of compensation for each workday that the meal or rest period was not provided.

In your situation, the new regulation means that, beginning Oct. 1, your employer should pay you an hour's pay for every paid rest break that you have been denied in an eight-hour shift.

If your employer will not pay you this penalty, you should file a complaint with the California Labor Commissioner or consult an employment attorney.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Company's Forgetfulness Doesn't Leave Loophole Q: The company I worked for started medical coverage two months ago and agreed to pay half the costs. However, that money was never taken out of my paycheck and I left for another job before the money could be taken out of my next paycheck. I think it was an honest mistake by the payroll department to forget to subtract the medical expenses.

Can my former employer legally require me to write them a check to pay back my medical coverage for the two months I was covered because they forgot to take it from my paychecks?

--L.L., Glendale

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A: Yes, the employer may require you to pay for insurance coverage that you agreed to pay. The fact that the employer neglected to make the deductions does not relieve you of your obligation to pay.

--Michael A. Hood

Employment-law attorney

Paul, Hastings, Janofsky & Walker

Change in Pay Period Could Break Regulations Q: We normally are paid every Friday for the current work week. Now our company wants to begin paying for time worked the previous week.

Are there any rules or laws that govern how pay is to be received and when, or is this solely at the discretion of the company?

If the company can change the payday, is it required to give notice to the employees?

--J.R., Los Angeles

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A: Employers normally have to pay wages two times per month. Work performed from the 1st to the 15th should be paid between the 16th and 26th. Work performed from the 16th to the last day of the month should be paid between the 1st and 10th of the following month.

Often, employers decide to pay employees one week after the work has been performed to allow sufficient time for accounting and other paperwork.

There are some exceptions, however. If the postponement that you describe violates the minimum number of times an employer must pay wages in a month, it would be a violation of law.

Even if it does not violate any laws, there might be violations of some express or implied contractual commitment to employees by the company. The employees may have an expectation that they were going to be paid on a certain date, and if the company failed to provide sufficient notice of a change, the employees could argue that the employer breached that implied promise.

Many employers who have made such a change give employees considerable advance notice. After all, employees may have been counting on that money to take a trip or pay a mortgage. Some employers provide loans or advances to employees in cases where a change in the pay schedule creates an undue hardship.

--Don D. Sessions

Employee-rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent shoptalk columns are available at http://www.latimes.com/shoptalk.

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