Q: Our employee handbook says we’re supposed to get meal breaks before the end of the 5th hour of our shift, but work gets so busy that I don’t have a chance to clock out to eat until the 6th or 7th hour. During our busiest times, it’s normal to go the whole day without being able to clock out for lunch. We just grab a quick bite while doing paperwork. Another co-worker complained about the lunches to our manager, who said that’s just the way it is in our business. Everything is on a deadline so we have to finish work before we can take breaks.
A new guy at work says we’re supposed to get an extra hour of pay when we get a late or missed lunch. The manager said he understands that’s the law, but that we have to contact payroll to let them know whenever we have a late or missed lunch to request extra pay. If we don’t, we don’t get paid.
But the company already makes us clock out and in on a biometric timeclock, so payroll already knows about our lunches. Why do we have to call the payroll lady every day we get a late or missed lunch? Seems like they’re just going trying to make it harder for us to get paid. I asked around and most of us don’t get those extra wages for late or missed lunches. A few guys knew about it, but said it was too much hassle to have to call payroll every time it happened because they give you attitude and make you jump through loops until you give up.
I’ve worked at this company a while, so if I earned an extra hour of pay each time I had a late or missed lunch, I’m owed a decent amount of money. We work hard here, and not being able to take proper lunches makes it harder. I don’t think I’m asking for free money, just what’s fair. The law says I earned that, right? Can I sue to get that money?
A: Yes, under California law, you earned those meal premium wages, and you and your co-workers can pursue a lawsuit to get paid what the company owes you. In fact, one or more of you can bring a class action so that all employees who had to miss their lunch or take it late can recover the premium wages owed to all of you by your employer.
California’s meal break law was first enacted in 1916, and was an early example of worker-protection laws aimed at health and safety in the workplace. The law is clear that the money earned for missed or late meals are wages, not penalties. So that’s not free money; you and your co-workers earned it.
As explained by the California Supreme Court, meal premium wages are “designed to compensate employees for hardships… employees should not be made to suffer.” Much like overtime, these wages are meant to compensate employees for the hardship of
working very long hours without the 30-minute meal break. The California Legislature believes all workers should get the breaks to maintain their health and safety.
Because it’s a wage, the law requires that meal premium wages be immediately paid when earned, just like overtime. So your instincts were right about your employer’s suspicious requirement that employees have to ask to be paid or else lose the chance. Your employer was obligated to pay those meal premium wages immediately when they were earned. And like you suggested, they should have done that based on the timeclock records they already created in real time.
Since the law requires employers to keep those accurate time records of when employees take meal breaks, company records of late or missed breaks create a presumption that the employees are owed meal premium wages. So rather than the employees having responsibility for asking to be paid the meal premium wage—and having to struggle through whatever obstacles an employer puts in the way of that happening—it was your employer’s strict responsibility to either: (i) pay the meal premium wage immediately; or (ii) collect and keep proper proof that they didn’t have to pay a meal premium wage because they actually placed you off duty and you chose not to properly take your meal break.
Based on what you described, the employer owes you these extra wages. It would make sense for you and your co-workers to speak with an experienced employment attorney about your rights to recover your earned premium wages.
* * *
The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
* * *
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. Your inquiries are confidential and at no cost. You can call the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]