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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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I am a staff RN in the ICU for a hospital in LA. For years

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I am a staff RN in the ICU for a hospital in LA. For years we would not get lunch breaks regularly. Is there any way to recoup those hours of pay? What is the statute of limitations on these types of situations? More importantly, we still are not receiving our required rest breaks ever. The hospital has no system in place to cover us for these breaks. I work a 12 hr shift in the ICU with a 30 min lunch break, that's it.... Our hospital made us sign an agreement to forego our 2nd lunch period as a condition of employment . What can I do about this? I have roughly missed the 3 10 minute rest break for 10 years!
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.
Hello and thank you for entrusting me to answer your question.

In general, California law provides that an employer may not employ a worker for a period of more than five hours at a time without providing the worker with a meal period of not less than thirty minutes. (Labor Code Section 512.) For shifts longer than 10 hours, this means an employee would ordinarily be entitled to two meal periods. However, section 512 clarifies that "if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."

Key to the waiver of the second meal period is "mutual consent." If an employer "made" an employee sign an agreement waiving their second meal period as a condition of employment, this would not constitute mutual consent, and thus the waiver of the second meal period would be ineffective.

In regard to rest breaks, which work a bit differently than meal periods, California law requires employers to "authorize and permit" nonexempt employees to take a rest period that should, to the extent practicable, be taken in the middle of the employee's shift. An employee is entitled to take a rest period of no less than 10 minutes for each 4 hour period of work, or major fraction thereof. Rest periods, unlike lunches, are considered time worked and an employer must compensate an employee for such time.

So, an employee working a 12 hour shift would typically be entitled to 3 ten minute paid rest breaks, if he or she affirmatively requested them. Note that unlike meal periods, an employee must typically request to take rest breaks because an employer is only obligated to "authorize and permit" breaks, it is not REQUIRED to take the initiative to provide breaks.

If an employer refuses to provide an employee with adequate meal periods and/or rest breaks, it would generally be wise to file a claim with the Department of Labor Standards Enforcement. The DLSE will typically be able to recoup a penalty of one hour of pay for each rest break and meal period missed. To file a claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Given the seriousness of this offense and the length of time over which it has occurred, it would likely be wise to hire an attorney to assist you through the process of making this claim.

For attorney referrals, visit this link: http://apps.americanbar.org/legalservices/lris/directory/main.cfm?id=CA or visit http://www.martindale.com I particularly like Martin Dale because the site allows you to search attorneys by practice area and also provides attorney ratings.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
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