Are You Keeping Track of Employees Breaks?

Today, employment attorney, Elizabeth Helms explains the obligations related to tracking meals and rest breaks for employees. It can be challenging but with a little planning and diligence, you can save yourself a lot of headaches.

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Are You Keeping Track of Employees Breaks?
By: Elizabeth Helms, Esq.

I recently met with a client regarding a labor board claim brought against his company. The former employee was alleging that the company prevented him from taking his meal breaks on a regular basis. My client was adamant that the employee took his meal breaks, but when I asked him what documentation he had to prove this, unfortunately, my client did not have any documents. An examination of the timecards the company used did not help either; the timecard only had entries for clocking in for arriving in the morning and clocking out for leaving at the end of the day. There was no entry for meal breaks. In the absence of documents from my client proving otherwise, a fact finder would most likely believe the employee’s allegation.

California law provides that all non-exempt employees are entitled to an uninterrupted, 30-minute meal period each time they work more than five hours in a day, and a second, uninterrupted 30-minute meal period to employees who work more than ten hours in a day. (Labor Code sec. 226.7 and 512) Additionally, non-exempt employees are entitled to uninterrupted, ten-minute rest breaks for every four hours of work. (Labor Code sec. 226.7)

Employers are required to keep records of relieving their employees for at least one meal period during shifts of over five hours. (Brinker Restaurants Corp. v. Superior Court (2012) 53 Cal.4th 1004.)

If an employer cannot prove that the employee took his/her break, then the employer is liable for paying that employee one additional hour of pay at his or her regular rate of pay for each day he or she was denied a meal or rest break. (Labor Code sec. 226.7)

The best way an employer can protect itself is to have a procedure for tracking its employees’ meal and rest breaks. Meal breaks should be recorded on timecard entries so that the timecard shows the following entries: clocking in for arrival, clocking out for a meal break, clocking in from the meal break, and clocking out for leaving at the end of the shift. Since rest breaks are “on the clock” they would not be recorded on the timecard, but instead, the employer should have a policy in place that its employees are to report any missed breaks promptly so the employer is aware of it. Once the employer is aware of a missed break it should pay the employee for each missed break and make a record of it.

Another recommendation is for employers to have meetings with its employees throughout the year to have the employees sign an acknowledgment form certifying, among other things, that they have taken all their meal and rest breaks or been properly compensated if they were unable to do so. We recommend the employer meets every quarter to get these forms signed because it alerts the employer of any potential issues and it keeps the “freshest” signature in the file so that the employee cannot claim a year later that they are owed compensation for missed breaks.

If you have employees and are interested in how BPE Law Group can help you with your employment-related matters, call us at (916) 966-2260 or email Elizabeth Helms at


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.