Q: Am I able to get compensated for all the times I worked beyond 6 hours with no breaks offered?
I recently got fired from my job as a waiter at a Japanese restaurant in California. I am a little bitter and I know for a fact that they have been breaking labor laws for a while now. According to California law, employers have to issue a 30 minute meal break that cannot be waived. Every day I worked there has exceeded 6 hours and I was only verbally offered a break that I usually waive (also verbally). By law I believe, I am only waiving the 2 10 minute breaks and not the mandatory 30 minute meal break. I believe the penalty is 1 hour of regular wage for each day of violation. Is there a way I can be compensated for all the missed breaks? What actions could I take? Do I contact the general manager directly?
A:
Your understanding of the law is mistaken. However, you may be entitled to compensation nonetheless
As a non-exempt employee, your employer had an obligation to provide you with a reasonable opportunity to take a ten-minute, on-the-clock, uninterrupted, duty-free rest period for every four hours (or major portion thereof) that you worked. The employer was not required to make you take those rest periods, but a reasonable opportunity requires that the employer place no pressure on your to waive those periods, including addressing the press of business that might force you to forgo the rest periods. If you voluntarily waived those periods, you cannot claim now that you are entitled to wage penalties for missing them. If you were not given the reasonable opportunity to take the rest periods described above, you are entitled to a penalty wage in the amount of one hour of pay at your regular rate for every day you were denied at least one such rest period.
As a non-exempt employee you also must be given a reasonable opportunity to take a thirty-minute, off-the-clock, uninterrupted and duty-free meal period on any workday when you worked more than 5 hours. If you worked more than 5 hours but less than 6 hours in a shift, you and your employer can agree (verbally or in writing) to waive the meal period requirement. However, no waiver is allowed when you work more than 6 hours in the shift. If you worked more than six hours and were not provided with a reasonable opportunity to take a legally compliant meal period, you are entitled to wage penalty of one hour of pay for every day you were denied the meal period as described. However, if you voluntarily refused to take the meal period, and you were not pressed into walking away from it by pressure from the employer or the press of business, then you will not be entitled to a wage penalty.
It would be wise for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
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