employee in suit taking breakMany employers in California know that certain employees are entitled to meal and rest breaks. But several years ago, there were multiple large class actions on the question of whether employers must “ensure” or merely “provide” breaks.

In practice, what this question means is that sometimes employees choose to not take their breaks, for whatever reason. Sometimes employees prefer to stay at their desks for lunch, for example. Or they find break time boring and would rather keep working.

In those scenarios, the employees are allowed to take breaks but are choosing not to.  In other words, the employers provide them but are not ensuring that they occur.

Is this a violation of California law? Are employer required to pay penalties when their employees do not take breaks? Are employers required to discipline or fire employees who fail to take breaks? Would an employee file a claim with the California Division Of Labor Standards Enforcement (DSLE)?

Unfortunately, the answer is not entirely clear. It is certain that employers must provide breaks. They must not prevent employees from taking breaks either expressly or with work policies that discourage breaks in a practical sense. Employers who do not have a compliant break policy in their handbooks may violate this law, simply by failing to have a policy.

The California Supreme Court has stated that employers are not required to “ensure” breaks. Employers are not required to police employees.

But here’s the rub: the argument is going to come in when employees say that work culture or work loads prevent them from taking breaks. So while employers are not required to police employees, they really should to some degree.

The best way to do this is by establishing a timekeeping system that is manageable, easy and efficient, so it becomes a force of habit and not a chore for your managers and employees. You should also train staff on appropriate break policies and encourage them to take breaks, ensuring that policies in your employee handbook, if you have one, are followed. Supervisors should be trained to encourage staff to take breaks.

These habits will keep your company from getting sued and will make lawsuits defensible if they come. Not only that, but breaks are genuinely good for your workforce’s productivity. You may find that encouraging your staff to get up from their desks to walk around, get water, stretch and socialize actually increases their alertness and camaraderie.

If you need guidance about an employment issue, please contact the employment law attorneys of Bellatrix PC at (800) 449-8992 for a consultation.

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