San Diego Business Journal

The California Division of Labor Standards Enforcement has finally devised a proposal that helps both employers and employees overcome one of the most significant wage and hour hurdles to hit this state since the on again, off again status of the eight-hour workday.

The DLSE has been holding hearings across the state to decide whether to change the law requiring meal and rest periods be held at specific times during the workday.

Consider these two examples of how good intentions regarding meal and rest periods make bad law in implementation:

Imagine you are an employer and an employee comes to you explaining that he is having difficulty finding child care one day. He asks you if he could work through his lunch break, eat at his desk, and leave half an hour early to pick up his child. Under the law today, you have two options: (1) you can say "yes," and pay the employee a full hour of penalty pay for missing his lunch, or (2) you can say "no" and look like an ogre.

Or, what if you are a server at a restaurant. One evening, you are serving a "big ticket" table when your manager calls you aside and tells you that you are about to begin the sixth hour of your shift and that you must go on break before collecting your tip. If you continue serving the table, you will violate the company's rules and be subject to discipline. The company has such rules because if your manager lets you continue serving the table, he/she is exposing the restaurant to liability for violating California's wage and hour laws.

Employers are caught between the proverbial "rock and a hard place." They want to accommodate their employees, and yet they don't want to violate the law and be required to pay penalties.

Under current law, all employers must "provide" all nonexempt employees who work at least five hours with a 30-minute, uninterrupted meal period. If those employees work more than five but fewer than six hours, the employee is permitted to waive the 30-minute period.

Until recently, the DLSE, both in opinion letters issued and in its case-handling manual, has interpreted the law to mean that if an employee does not take his/her meal period, the employer is required to pay the employee one hour of wages as a penalty for the employee not taking the legally mandated meal period. This penalty applies even if it is the employee who chooses not to take a break.

New regulations have been proposed to afford employers and their employees with the flexibility necessary to accommodate the needs of all involved. If passed, an employer will be deemed to have "provided" the required meal period, if the employer makes the meal period available and gives the employee the opportunity to take it; posts the applicable Industrial Welfare Commission wage order; and maintains accurate time records for covered employees. Additionally, under the proposed regulations, an employer further establishes that meal periods have been provided if the employer informs the employee of the circumstances in which the employee is entitled to take the meal period and the employee acknowledges in writing that the employee understands those rights. The regulations would also remove the onerous penalties assessed on employers if their employees want to take their meal break at a time a little earlier or later than is currently mandated.

These proposed regulations are vital to both employers and employees. Most employees want the flexibility to leave early on occasion and to take their meal break when it works within their schedule. Most employers want to be able to accommodate their employees' requests without being in violation of the law and being penalized for it.

While some argue there are rarely employment-related laws or regulations that pose a "win-win" situation for everyone, this proposal is as close as it gets.

Helene Wasserman is a partner at the national labor and employment law firm of Ford & Harrison. She can be reached at (213) 237-2400 or hwasserman@fordharrison.com.