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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6741
Experience:  Significant experience in all areas of employment law.
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Dear Attorney, Hello again. I own and run an ice cream shop

Customer Question

Dear Attorney,
Hello again.
I own and run an ice cream shop in a shopping mall in California. I have typically 2-3 employees on shift but no supervisor/manager as the business model doesn't support hiring a manager. I visit the store 3-4 times per week.
1. Most employees (high school/college kids) work 3 to 8 hours shifts. One of my challenge is that they take longer breaks and multiple times as there is no supervisor or tracking system. To limit the breaks, I have asked employees to XXXXX and Clock In breaks (in the computerized Punch card software that we use for time card clock in/out) whenever they go out for small or long break and told them I will add all these hours back to their payroll so that they paid. My goal to Clock Out/In is to track their breaks (so I know, how many and how long breaks) they are taking. Some employees don't Clock out/in breaks, so I plan to take strong disciplinary action against those. Before doing so, wanted to check, is it fine/legal to ask them to Clock Out/In Breaks? as long as I have told them in writing that I will add the break hours back to their time cards for payroll.

2. Can you think of or know any better system to control this "breaks" challenge in this situation? one major challenge with my solution is that I have to manually Add All Breaks Hours and Then Add to Time cards every week for payroll.

Thanks
Kumar
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.

Kumar,

Hello again and thank you for your message.

If I were an employer in your circumstance, I'd shy away from any policy which required my employees to clock out for breaks. Employees are entitled to one 10 minutes paid break for every 4 hours of work or major fraction thereof, and even though you plan on adding this time back onto their timecards when you process payroll, it has the initial appearance of a non-compliant labor practice. Plus, this is complicated.

I am assuming that due to the young (potentially irresponsible) nature of your employees and the fact you do not employ a manager "on the ground" that you have video surveillance. Assuming that to be the case, I'd simply require my employees to write in a log when they are taking their ten minute paid breaks and ask that they leave the store premises for that time. Then, I'd cross check the log times with my surveillance footage to ensure they were leaving and coming back when they said.

A store policy should ordinarily be "if you are on the premises, you are on the clock," with the only exception being logged rest breaks as described above. That keeps things simple and easily enforceable, since if the logged rest break times are not consistent with the surveillance (whcih will either show or not show the employee on the premises) you will have proof of a violation and thus, violation of your company policy and grounds for discipline.

If you do not have surveillance, you would be extremely wise to invest in it, not just to ensure that employees do not take took long of breaks, but to guard againt theft and other risks a business of your kind faces.

As always, please feel free to let me know if you have any further concerns. If this answers your question, I would be most grateful for a positive rating of my service so that I may receive credit for assisting you.

Customer: replied 11 months ago.

Thanks attorney. Appreciate your advise to my situation and paper log situation. I thought about it but did't implement thinking punch cards would work. Would implement the paper log system. Yes, we have the remove CCTV that see thru iPad and iPhone, so tracking would be easy.


 


One final point, could I know the amount of paid and un paid break time permitted for 3 hours, 4 hours, 5, 6 hours and 8 hours shifts?

Expert:  Patrick, Esq. replied 11 months ago.
Thank you very much for your reply.

In regard to lunches and rest breaks, 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 an unpaid meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. (Labor Code Section 512.)

In regard to rest breaks, which are different than meal periods, California law requires employers to "authorize and permit" nonexempt employees to take a PAID 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. "Major fraction" thereof means two hours or more.

So, for example, if a worker works a shift of two hours, they'd be entitled to a paid 10 minute rest break. If they work a five hour shift, they'd still nly be entitled to one paid 10 minutes rest break. However, if they work 6 hours, they'd be entitled to two paid 10 minute rest breaks because they have now worked 4 hours AND a "major fraction" of four--which is the additional two hours bringing them up to 6. An 8 hour shift would also require two paid 10 minute rest breaks.

I hope that makes sense. Please let me know if I can provide any further clarification.
Customer: replied 11 months ago.
Thanks much Attorney.
2 quick Followup questions:
1. If some employees take more than 10 mins break frequently (say 30 mins) for 4 hour shift, can I warn them that additional 20 mins will be considered in paid?

2. Some employees frequently take breaks stating they area going to Rest Room (as we don't have rest rooms at store). When they go out, they go out to Macy's, JC Penny's and spend 15-20 mins and come back. So, are rest rooms breaks are part of these 10 mins breaks or separate? I know, it seems a picky question but just trying to solve this problem about "going to rest room, while they are actually going for roaming around in mall".
Expert:  Patrick, Esq. replied 11 months ago.
Thanks again.

If some employees take more than 10 mins break frequently (say 30 mins) for 4 hour shift, can I warn them that additional 20 mins will be considered in paid?

Yes, most certainly.

2. Some employees frequently take breaks stating they area going to Rest Room (as we don't have rest rooms at store). When they go out, they go out to Macy's, JC Penny's and spend 15-20 mins and come back. So, are rest rooms breaks are part of these 10 mins breaks or separate? I know, it seems a picky question but just trying to solve this problem about "going to rest room, while they are actually going for roaming around in mall".

Restroom breaks are separate, but an employe has the right to limit restroom breaks to what is "reasonable."

If I may be candid, it seems you underlying problem here is a lack of adequate supervision for a young support staff. It may be in your interest to hire a part-time manager or to spend more time in the shop if at all possible. There is only so much you can do to address and regulate these unacceptable behaviors remotely.

All the best to you moving forward and please do not hesitate to contact me with future questions.
Patrick, Esq., Lawyer
Satisfied Customers: 6741
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Thanks much, attorney, for your response and candid advise. I fully agree to hire a manager. I interviewed a manager on Friday and she will be joining in 2 weeks. I go to store every other day for 3-4 hours but problem starts when I leave. Manger will take care of it. Thanks again.

Expert:  Patrick, Esq. replied 11 months ago.
Sounds like you have a good handle on things. Thank you again for permitting me to answer your questions and for being a Just Answer customer.

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