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Wage and Hour - The Basics


Meal Break Basics

In California, an employer is required to ensure 1) employees are receiving the correct number of meal breaks, 2) that meal breaks are being recorded, and 3) proper pay is being given for any missed meal breaks. ​​​​​​​​​

Nearly all non-exempt employees are entitled to receive a thirty (30) minute meal period or break for every five (5) hours worked. An employee may voluntarily waive this requirement if they work six (6) hours or less. 

If an employee is to work more than ten (10) hours in a single shift, that employee would be entitled to receive two (2) thirty (30) minute meal periods or breaks.

Similarly, that employee may voluntarily waive their second meal period or break, but only if their shift is twelve (12) hours or less and the first meal break was not waived. 

If an employee worked more than five (5) hours and the employer failed to provide a required meal break, the employee is entitled to “premium pay” in addition to wages earned while working through the meal break. “Premium pay” is an extra hour of wages for every day you miss a meal break. However, an employer is only required to pay for one meal break premium pay per day even if the employee was denied two meal breaks on the same day.

Rest Break Basics

In California, all non-exempt employees must be “authorized and permitted” to take a ten (10) minute rest break for every four (4) hours worked, or for working a “major fraction” of four hours. Anything over two (2) hours has been held to be a “major fraction.” However, if the employee is not scheduled to work at least 3.5 hours, then the employee is not entitled to receive any breaks.  

An employee is entitled to be relieved of all duties during these rest breaks and is also entitled to receive compensation for each rest break. For rest breaks, unlike meal breaks where the employer is required to ensure an employee takes the break, all the employer need do is authorize and permit the employee to take the rest break. The employee is responsible for ensuring they are taking these breaks.

Overtime Basics

Generally, if an employee works more than 40 hours a week, more than 8 hours a day, or 7 days in a row, he or she may be entitled to overtime pay. Employees who are salary, hourly or piecework may be entitled to overtime pay. EXCEPTIONS to the standard rule may include Union Members, “Exempt” Employees, and some Miscellaneous Jobs/Industries.

In California, Saturdays, Sundays and holidays are NOT automatically considered overtime. These days are treated as any other normal work day. However, if an employer has agreed to provide additional compensation for working these days, even if verbally, that promise may be enforceable.

Final Pay Basics

Employees who are discharged must be paid all wages due at the time of termination. (Labor Code § 201). “All wages” include any earned, but unused vacation pay. (Labor Code § 227.3). There is no requirement under California law that an employer pay accrued sick leave upon termination. An employer must pay a discharged employee at the place of discharge. (Labor Code § 208).

An employee who does not have a written agreement for a definite period of employment and who quits without giving prior notice must be paid his or her wages within 72 hours. If the employee gives at least 72 hours notice of his or her intention to quit, those wages must be paid at the time of quitting. An employee who quits must be paid at the office or agency of the employer in the county where the employee worked. An employee who quits without 72 hours notice may request that his or her final wage payment be mailed to a designated address. The date of mailing will be considered the date of payment. (Labor Code § 202).

An employer who willfully fails to pay any wages due to an employee who is discharged or quits within the time frames provided under the above Labor Codes may be assessed continuing wages as a penalty from the date the wages were due up to a maximum of 30 days. (Labor Code § 203). The penalty is calculated by multiplying the daily wage rate of the employee by 30 days. Penalties under Labor Code § 203 may be avoided if the employer can show that a good-faith dispute existed concerning whether any wages were due. A “good-faith” dispute means that the employer’s defense, based on law or fact, if successful, would preclude any recovery on part of the employee.

Even if there is a dispute, the employer must pay, without requiring a release, whatever wages are due and not in dispute. If the employer fails to pay what is undisputed, the “good faith” defense will be defeated whatever the outcome of the disputed wages. (Labor Code § 206).