Legal Question in Employment Law in California
I have had a period of almost two years (along with fellow employees) where I have not been able to take a complete break. This is not consistent, but more often the case during the work day. I am a non-exempt employee who works 9 hours and gets a 1 hour lunch break.
I work in retail banking and my manager insists that we be available at all times if a customer needs our help. However, she does insist we take our lunches. When we want to go on break, and if we do, if our assistance is needed we have to be there to help. If we go up against this and demand we get a break we are told that "No one else is available", "Well, this member needs assistance." They will get upset, roll eyes, etc.
I have brought this up to HR after meddling over it time and time again. HR only wants to speak to me over the phone and I want to know if this is a good idea. Email isn't working as they take time to write me back and it's often rather vague. I want to ask if you think it is advisable to continue speaking in person/over the phone or communicate via email.
Also, they stated that they would address the break issue with my manager and that it was an easy fix, but when I mentioned what they will do with all of the breaks I didn't get, she just said that they would make sure I get them in the future. According to CA Labor laws we are required to get 1 hour overtime if we miss a break. HR then started asking me questions such as "Were you told you could not go on a break?" "So you are saying that they don't allow you to go on break?" Well, not really, but it's more of an intimidation thing.
What do you suggest? Should I hire an attorney just in case? Keep communication over the phone/person or email? Thanks for all of your help.
2 Answers from Attorneys
Denial of breaks is a Labor Code violation. You would be entitled to bring legal action to collect unpaid compensation, accruing interest and recurring monetary penalties for EACH denial violation, plus attorney fees if you succeed. Those add up quickly. If serious about pursuing this yourself, or jointly with others, feel free to contact me. You'll need to be able to 'prove' your claim through witnesses and/or documents, and you'll need to 'prove' the number of breaks denied somehow. We'll talk about how to do that.
As you probably know, a meal break must be uninterrupted, and the employee is free to leave the workplace, if they choose to do so, to be a true break. If the employer prevents the employee from taking their break, it is liable for a one hour wage for each violation, plus overtime, if the employee is on the clock for more than 8 hours in a workday.
I am a firm believer that all important communication should be documented. Even if the conversation is over the telephone, a follow-up letter or email should memorialize the conversation to avoid a dispute over what was said.
If you believe you are not getting anywhere, you might want to consider hiring a lawyer to write to the employer, which may get their attention. Yes, it would ratchet up the tension because then their lawyers will get involved. But it sounds as though you are talking to a wall over this issue. Many employers do not want to change these policies because of budget concerns and will not do so unless they absolutely have to.
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