Meal & rest break violations in the healthcare industry

By: bruceld9 | Posted: 30th March 2011

Q: I work as a nurse in a hospital three days a week doing 12-hour shifts per day. We are allowed a 30 minute unpaid lunch break every day. I usually take my lunch at the hospital cafeteria. However, while clocked out for lunch, I am supposed to have my cell phone with me. Usually, while I’m eating, I would take the call of any hospital personnel calling regarding work. These calls would take anywhere from 10 to 20 minutes. Once the call is done, I would finish eating and go back to work. Because of these calls, I feel that I am still working even though I was technically clocked out for lunch and had actually eaten. Am I entitled to additional wages?

A: Under California law, you are entitled to a 30-minute uninterrupted meal period. During the meal period, you should be relieved of all duties. If you are able to eat but are also simultaneously addressing work-related issues, then you have not been provided an uninterrupted meal period.

If the meal break is not provided as required by law, the employer shall pay the employee one additional hour of pay at the employee’s regular rate for each workday that the meal break is missed. The employer who violates the meal break rule may also be liable for penalties.

Additionally, 12-hour employees in the healthcare industry are entitled to a second 30-minute meal period. They may voluntarily waive their right to one of their two meal periods. However, in order to be valid, any such waiver or agreement must be in writing and voluntarily signed by both the employee and the employer.

The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect. Because the law requires a mutual agreement, an employer cannot require an employee to waive the right to a meal period.

The law on meal breaks may significantly affect the employee’s right to overtime. If the employer fails to provide a meal break to an employee who works 12 hours per day, the missed 30 minutes is added as time worked. Hence, the employee may be entitled to additional overtime pay if the employee’s shift has now extended to 12 hours and 30 minutes. Any work beyond 12 hours per day by nonexempt employees must be paid at the overtime rate of twice the employee’s regular rate (or double time).

Employees who work 12 hours per day are also entitled to at least three 10-minute rest breaks. Unlike the meal breaks, the time allotted for rest breaks is counted as minutes or hours worked. If the employee missed any of these rest breaks, she or he is entitled to an additional one hour pay at the regular rate.

As we have previously discussed, if an employee misses both a meal break and a rest break, the employee becomes entitled to an additional two hours of pay at the employee’s regular hourly rate. For a nurse working a 12-hour shift who did not waive, and was not provided, a second meal break, and was not provided a third rest break, he or she would be entitled to two additional hours of pay.

For example, if the nurse earns an hourly rate of $35 per hour, the nurse will become entitled to an additional $70 per day that a meal and a rest break were not provided. A 12-hour duty nurse who has worked for four years for the same employer and regularly missed meal and rest periods two days in a week may potentially be owed $28,000 in unpaid wages for missed meal and rest breaks. In this economy, that is not loose change.


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Tags: job, 30 minutes, healthcare industry, wages, lunch, workday, cell phone, working time, california law, nurse, overtime