Need help explaining California employment laws

I directly manage our office coordinator/receptionist.

The underline is mine. The woman I supervise frequently works through lunch, “because there is too much to do.” I tried to explain to her that by law, she NEEDS to take a break and her response is, 'don’t worry, I am not going to sue."

I know that is not the point and that the law is protecting her as well as the company, but is there anything I can tell this woman to make her take her lunch?

I don’t want to go to H.R. for something so trivial and need a good way to explain to her that she REALLY needs to get up from her desk now and then?

You can let her know that she will be written up if she works through lunch. Then follow through.

This has happened at several places I have worked. It usually takes a writeup or two before it gets through peoples’ heads.

The problem is this - it’s a slippery slope from “I want to do more work” to feeling pressured “if I don’t ignore my lunch like the other keeners, I won’t get promoted” to “they’ll penalize me/lay me off if I don’t work through lunches.”

If there’s a way to pressure vulnerable employers, some nasty boss somewhere has done it.

Also, if the company does not actively discourage this behaviour, they could be accused of subtley encouraging it - which means the employer would then be liable if some employee complained and demanded the penalty on the day they quit - “give me the last year’s worth of 1 hour pay per day”.

Even if the work-thru-lunch employee is the best and brightest candidate in years for promotion, someone will complain they only got it for the reason that they worked beyond the hours required and that’s an unspoken message to everyone else to do the same.

It’s not like some employees feel they can have a reasoned and honest dialog with their boss. It’s the same idea as “upaid overtime, everyone stays an hour or two after their time is up.” Or… can you really believe if the boss asks you out on a date and then has to decide your raise, are the two actions totally unrelated?

That’s why the standard HR policy is “follow the rules, no exceptions”.

Tell her she is in danger of being fired if she does not take her required breaks. Put it in a memo cc to HR. That ought to fix the problem.

She is only “not going to sue” as long as things go in her favor. Once anything turns sour she will be claiming all those lunch break she is working through as compensation and the company will have to cut a fat check to get rid of her.

This is why mandatory breaks exist. And why you could be the one fired if you keep allowing this. HR hates getting sued.

I am not allowed to begin any official work function more than 5 minutes before my shift. I can be there, just not do anything. And I walk off the job 5 minutes after my shift. If some emergency requires that I work an extra 15 minutes I am required to get permission to comp-time those extra minutes. Which is a pain.

All because some people are all happy overworked martyrs until they feel unappreciated.

Yes, it’s your government, you shouldn’t have to ask? :wink:

I worked in H/R in Maryland and Illinois and the law is purposely written like this to put the onus on the employer to enforce it NOT the employee.

Owners were pressuring employees to work through lunch.

The way to get this through to her is to make her lunch time set. In other words she goes at 12noon. Then have her punch out and inform her she cannot be at her work station during lunch.

Inform her failure to do this will result in being written up. If she complains about needing to work through lunch to get her work done, you need to address why your company is not employing enough staff. If need be, you must take some of her work and do it yourself.

When I was a manager I hated the fact that for 30 minutes I’d have to drop everything and sit and work in the business center.

It is almost certain you NOT be sued. There’s no need for this. All the employee has to do is contact the Dept of Labor at her state, go to the wages and hours division and request help.

Wages and hours will get her past money, without a suit, easily. A wages and hours audit is horrible to go through and if someone complains, chances are they will audit the entire company not just that employee. So you want to correct this.

This said, there are a few exceptions to this rule and they vary from state to state. For instance, health care workers monitoring patients on overnight shifts and other positions where it is deemed necessary for safety or security can be made to take their lunches at their desks. But the exceptions vary by state and are slim.

HR is never your freind and should never be involved unless absolutely nessesary.

If you are the employer, or its agent, HR is certainly your friend. The OP is the employee’s supervisor.

A supervisor is not “the employer”. He could get into hot water from HR just as well as his employee can.

He’ll get in even more hot water if HR and top brass are blind-sided by an expensive lawsuit and Dept of Labor investigation. He should consult with his boss and take the required steps to ensure the law is followed.

A question: does the law distinguish between exempt and non-exempt employees? And which is this employee?

As an exempt (salaried, not subject to overtime pay) employee, I’ve never heard of any issues with working through lunch. Admittedly, I’m not in California.

Receptionists don’t tend to be exempt employees.

Tell her, as her manager, that you are giving her a direct order to leave her station during her lunch break, point out to her the location of the breakroom, and tell her that if she refuses to do this, she will be disciplined as if she violated any other workplace policy.

Also, ask her why it is that she cannot complete her work in the time your company has allotted for it. Perhaps some duties need to be reassigned, perhaps she needs to be trained to become more efficient, perhaps she needs to stop goofing off during her shift.

Tell her:
"Look, I know you won’t sue us. You’re a wonderful employee who works hard. But if anyone else – like a government inspector – found out you didn’t take a lunch break, then the company could be in real trouble. So I really need you to take your break every day, even if you don’t feel like you need one – if you don’t you’re putting the company at risk. "

Include “and me personally” after company, if you think that would also sway her.

If you have to, add “so I’m not asking you, as your boss I’m directly ordering you to take your break every day.” and if necessary, repeat, ending with “in fact, it’s such a big risk for the company that I’ll have to write you up with HR if you keep not taking breaks.” But hopefully it won’t get there. I think the key is to have her understand the break is not about being generous to her; it’s about the company not getting in trouble for breaking the law.
Separately, you may need to address her need to feel that she’s vital and that the company would collapse if she takes even a half-hour break. I’m afraid I’m not good at dealing with that one.

Exempt and salaried are not the same. Most exempt employees are salaried, but not all salaried employees are exempt.

In form her that by not taking her break she is putting the company in jepordy, and she needs to take it. If she does not then let her know that you will be required to give her a written right up.

It does not matter if she sues, if the labor department finds out about this they could fine the company, audit the company’s books to see if there are any other cases of shorting wages and require the company to pay the back wages. And I believe they go back 5 years.

Eh, I never heard of the law applied this way. I frequently work during lunch and just eat while I do so. I prefer it that way

Worst case scenario, what can happen to the company? Say a government investigator does come sniffing around—what’s the worst that can happen? What if the employee does suddenly get a bug up her ass to sue—are we talking a bazillion dollar punitive judgment? I never received breaks at the job I had before my current one. I would regularly work five, six, seven, eight, or more hours and not even get a ten-minute break, much less a half hour. I finally got fed up with the place and quit last September. Am I entitled to any restitution?

One employee, and she continued after being asked not to do so? Not much, sure.

In your case, I’d consult your states EDD or a lawyer.

Yes. Talk to your state labor board.

In California? The law doesn’t care what you prefer. The law is 30 minutes after 5 hours of work. If you don’t get the break you are entitled to 1 hour of additional pay.

Gilles: You need to let your employee know that it isn’t their decision to make. The state has mandated this. It’s not about being sued, it’s about following the law. And as someone said above, document her if she decides she wants to test you. It’s the only way things will ever change. Good luck!

The problem often lies with “unspoken” communication.

The supervisor made be told, the lunch shift MUST be covered. H/R will demand you meet the law, but then make it impossible for you to meet the demands of the business.

In other words, H/R says, “Make sure lunches are taken.” Then it says “AND make sure the shift is covered.”

Suppose you can’t do both? This is the problem you run into. And you can bet H/R will abandon you if trouble starts. And a lot of bosses aren’t strong enough to stand up to anyone.