Many San Diego employers have workers that prefer to work from home and, if the job duties can be effectively accomplished from a remote location, many employers like the concept, too. However, if you have work-from-home employees or if telecommuting is something your business is contemplating, you need a well-drafted and well-considered telecommuting policy. An experienced San Diego corporate attorney can help with advice and counsel. In this article, the first of several in this series, we will discuss some pro-tips concerning how your telecommuting policy should deal with rest and meal breaks.

Rest and Meal Breaks are Mandatory

Under California Wage Orders and the Labor Code, employees are entitled to rest and meal breaks. These are mandatory even if the employee says he or she does not want the breaks and must be given even if the worker is telecommuting. Allowing the employee to continue working puts your business at financial risk. Any employer failing to provide the breaks is required to pay an extra hour of wages for each day where the break(s) is/are not provided. See Cal. Labor Code, §226.7.

The trick, of course, is enforcing the breaks. The following steps are essential.

• First, make sure your company has a written policy and practices in place for enforcing the breaks for all nonexempt employees. The policy must be phrased in terms of number of hours worked rather than based on the set times based on a 9-to-5 work day. A 30-minute meal break is required if an employee works more than five hours in any given day and 10-minute rest periods are mandated for every four hours of work. Remote workers are more likely to work non-standard hours, and, consequently, the policies must be phrased in a way that accounts for the variation. See Dept. of Industrial Relations FAQ sheet here for meal breaks; and here for rest breaks.
• Second, make sure that the written policy specifically allows for the work-from-home employee to go anywhere he or she wants during the meal break. That is, specifically state that the employee does not have to remain at the remote location. Otherwise, the employer might be required to pay wages for the meal break.
• Third, make sure that the written policy specifically mentions and includes work-from-home employees. The value of this is that it reinforces that employee policies are uniform regardless of the location and uniformly applied regardless of the status of the employee. This also helps with any employee who may work from home temporarily.
• Fourth, make sure the written policy is given to the remote workers and that there is a specific discussion with workers about taking mandatory breaks. An annual “review/reminder” is a good idea, too.
• Fifth, make sure that your written policy requires work-from-home employees to provide time sheets or other documentation showing their work hours including rest and meal breaks. There are phone and online applications/programs that allow workers to “clock” in and out. This allows an easy method of verifying that breaks are being taken.
• Sixth, supervisors and human resources personnel must regularly verify that breaks are being taken. Training is needed here, too.
• Finally, your written policy should have a progressive set of discipline — up to and including termination — for remote workers who fail or refuse to take their breaks. As noted, there are significant financial risks with employees who refuse to take breaks.

In later articles in this series, we will explore policy issues with respect to overtime, reimbursements, worker safety, workers’ compensation, and more.

Call San Diego Corporate Law Today

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard has been named a “Rising Star” for four years running by SuperLawyers.com. Contact Mr. Leonard by calling (858) 483-9200 or via email. Like us on Facebook.

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