Wednesday, May 22, 2013


In the 2012 case Brinker v. Superior Court (2012) 53 Cal.4th 1004, the California Supreme Court clarified employer obligations and employee rights regarding meal periods and rest breaks.  An employer has fulfilled its obligations if the workplace complies with the following procedures.     

Meal Periods

An employee must be provided with an off-duty meal period of at least 30 minutes if the employee’s shift is five hours or more. The meal period may be unpaid and must be provided no later than the end of the employee’s fifth hour of work.

An employer fulfills its legal obligation if the meal period:

(1)    Relieves an employee of all duty during the designated meal period; and
(2)    Permits an unrestricted meal period of at least 30 minutes.

The employer is not required to police the workforce to ensure that employees do no work during this off-duty period.

When a an employee’s work day is not more than six hours, the meal period may be waived by mutual consent of the employer and the employee.

Employees must be allowed to leave the premises during meal periods.

Advice to Employers:  Do not discourage meal or lunch breaks, and do not require employees to remain on the premises.  Your written employment policies or handbook should clearly state your company's meal period policies and those policies should be followed.

Further Advice:  You should have adequate staffing or back-up plan to avoid requiring employees to work through meal periods and rest breaks.  

Employer Caveat:  Violations of meal periods and rest breaks are often brought as class actions on behalf of large numbers of employees.   

Second Meal Period

An employer is required to provide a second meal period of at least 30 minutes when a shift is more than 10 hours.  The second meal period may begin no later than the end of the employee’s 10th hour of work. 

The second meal period may be waived if all of the following conditions are met:

(1)    The total hours worked on that day do not exceed 12 hours.
(2)    The employee and employer mutually agree. The agreement must be in writing and must permit the employee to revoke the agreement.   
(3)    There was no waiver of the first meal period of the work day. 

Rest Breaks

Employees must be given a ten-minute rest break for every four (4) hours of work, to be taken in the middle of each four-hour period as far as practicable.  No rest break is required if the shift less than three and one-half (3 1/2) hours.  Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.

Rest breaks must be paid and must be considered as time worked.  Employers may require employees to remain on the premises during rest breaks.

Employer Advice:  See advice above for meal periods. 

Above are the employer obligations.  Below are the financial consequences for violation of meal and rest break laws. 

  Adverse Financial Consequences for Failure to Provide Meal or Rest Breaks

(1)      Violation of meal period or rest breaks entitles an employee one additional hour of pay at the employee’s regular rate of compensation for each day no meal or rest period is provided.  
(2)      If meal and rest periods are missed in a work day, the employer will be liable for two separate wage payments.  The wage payment is due in the next pay period.
(3)     Employees may seek back pay for meal and rest break violations for up to three (3) years!  
Disclaimer:  This Alert is designed to provide a summary of general information.  It does not state the full extent of the law requiring meal and rest breaks; nor does it set forth exceptions to the law. Further, it does not offer solutions to individual problems.  Employers with specific questions concerning meal and rest breaks should consult legal counsel. 

Kenneth J. Sargoy, Esq. advises employees and employers and provides representation in  employment cases.  Questions about meal and rest breaks, drafting or revising meal and rest period policies, enforcing employee rights, and other employment matters may be directed to Kenneth J. Sargoy, Esq., telephone toll free (855) 235-1488 or (310) 472-7113 or to his e-mail,  THIS ALERT CONSTITUTES ADVERTISING UNDER APPLICABLE RULES OF PROFESSIONAL CONDUCT. 

Tuesday, May 21, 2013


  New California Law Requires Written Commission Agreements** for Employees

Effective January 1, 2013, California law requires employers to provide a Written Agreement to all employees who perform work in California and are paid on a commission basis.  

California Labor Code section 2751 requires that the Agreement:

(1)     be in writing;
(2)     set forth how commissions will be computed and paid; and
(3)     be signed by the employer.

The new law further requires the employer to provide a copy of the Agreement to each employee, and obtain a signed receipt for the Agreement from each employee.  In addition, if the employee continues to provide work after the Written Agreement expires, the terms are presumed to remain in full force and effect until superseded by a new Agreement or employment is terminated by either the employer or employee.

How the New Law Affects Employment in California

(1)     Employees who provide "services" within California and who are paid on a commission basis are covered by the law, regardless of whether the employee is "based" in California.
(2)     The law applies to out-of-state companies, regardless of whether the company has a physical facility or office in California if its employee is providing services within California.  
(3)     A Written Agreement is required if the employee's wages are calculated and paid either entirely or partially on a commission basis.

**        The term "Written Agreement" or "Agreement" as used herein has the same meaning as "Written Contract" or "Contract."

Note:  This Alert is designed to provide a summary of general information.  It does not attempt to offer solutions to individual problems.  Kenneth J. Sargoy, Esq. provides assistance and representation in connection with employment matters.  Questions about this new law, drafting, revising present Commission Agreements to conform to the new law, enforcing Commission Agreements, and other employment matters should be directed to Kenneth J. Sargoy, Esq., telephone (310) 472-7113 or his e-mail at  THIS ALERT CONSTITUTES ADVERTISING UNDER APPLICABLE RULES OF PROFESSIONAL CONDUCT.