With wage and hour litigation increasing in California, employers need to be especially careful of employees who eat lunch at their desks and work while eating.

While it’s not an issue for exempt employees, it is for hourly workers, who should be required to take their regular rest and lunch breaks without working while they are off the clock, a human resources specialist warns in a recent blog.

A recent study found that three in five workers report eating lunch at their desks at least sometimes. Even if they are just answering e-mails, that’s enough to result in a large fine for the employer.

Under California law, employers are required to provide meal and rest breaks to their employees. Additionally, the state Supreme Court ruled in 2021 that employers are not allowed to round up time-clock punches for employee meal periods and that workers must receive their full break allowance.

During their meal breaks, it’s important that workers abstain from working at all. That includes answering calls or checking e-mail.

The law

Employers are required to provide a half hour for a meal break to all non-exempt employees who work more than five hours in a day, unless the shift will finish in six hours or less and both the worker and employer agree to skip the meal break.

Meal periods can be taken during work and counted as time worked only if the nature of work prevents relief from all duties and if both the employer and worker agree to working through lunch in writing. Employees have the right to revoke that agreement at any time.

If an employee works more than 10 hours in a day, they are entitled to a second meal break of at least 30 minutes. That’s unless the total hours worked is no more than 12 hours, and both parties agree to waive the second meal break.

In addition to meal breaks, state law requires employers to provide a paid 10-minute rest period for every four hours worked. No break is required if the employee works three and a half hours or less.

Who’s exempt?

Some workers are exempt from these laws, in particular certain executive, administrative and professional employees. In order to be exempt:

  • Their primary duties must be executive, administrative or professional, and they should devote more than half of their time to these duties.
  • They must regularly and customarily exercise discretion and independent judgment at work; and
  • They must earn a salary equivalent to at least twice the state minimum wage for full-time (40 hours/week) work.

What you can do

It’s imperative that you put policies in place to avoid being sued for infringing on your workers’ meal breaks. And your employees should understand they are not to work during their breaks.

You may want to consider:

  • Requiring supervisors and managers not to contact workers while they are on their meal breaks. That includes calls, text messages or e-mails.
  • Instituting a policy that bars employees from working during their meal breaks or anytime they are not on the clock.
  • Encouraging staff to take breaks by normalizing the habit of briefly stepping away from work. Managers can lead by example by taking lunch breaks with their workers.
  • Having a designated space like a break room for your staff to take their lunches. Ideally, it should be equipped with one or more tables, a refrigerator, microwave, plates, cups, glasses, sink and dishwasher.
  • Recording these breaks so that you can prove your employees actually took them. This is essential in case you are sued. Provide a mechanism for your staff to record their meal periods, and require them to use it.