We have a junior administrative staff member (non-public safety, non-union) who's work schedule is 6:30 to 4:30, however she doesn't take her lunch break until from 3:00 to 4:00. On Friday's she sometimes pushes her lunch break to 3:30 and then doesn't return for the day, since City Hall closes at 4:30 on Fridays. My concern is that according to Ca DOL, she can't work more than 5 hours without a 30 minute meal break...and so therefore, could ask the City to pay her overtime. I have been told that, as a Municipality, we are not bound by the DOL definition of "meal breaks", so she would not be able to claim overtime. Just looking for clarification/interpretation. If you could please provide the statute that applies, that would be great.
Beth,Thank you so much for clarifying your question.Generally speaking, the provisions of California's Labor Code do not apply to public employees. Rejecting the argument that Labor Code section 512 (the meal period requirement) applies to public employees, the court stated in Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th:Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector. Since section . . . 512 do[es] not expressly apply to public entities, [it is] not applicable here. Further, applying section . . . 512 to the District would infringe on its sovereign power to regulate its workforce.”See here for an even more recent judicial opinion that discusses why California's meal period law, as well as other provisions of the California Labor Code, do not apply to public employees: http://caselaw.findlaw.com/ca-court-of-appeal/1543197.htmlYou should note that while the protections of California's Labor Code do not apply to public employees, the protections afforded by the Fair Labor Standards Act, which is FEDERAL law, do apply. While the FLSA contains no requirement to provide meal periods, it does permit public and private employees to bring claims on the basis of:- Failure to pay overtime for all hours worked over 40 in a week.- Failure to pay for all hours actually worked, including time spent working during unpaid lunch breaks, at home, or "off-the-clock" outside of regular shift times.- Failure to timely pay the full amount of all wages earned on each pay period. So to summarize, California's Labor Code provision entitling employees to meal periods does not apply to public employees, nor does any other portion of the California Labor Code. However, the Fair Labor Standards Act, a federal law, does apply to public employees, but the FLSA does not contain a meal period requirement. Thus, public employees cannot sue for failure to take a timely lunch break.I sincerely XXXXX XXXXX this information helps you and I wish you the best.If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you. Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.Thank you and very kindest regards.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).