Ask the HR Hammer

The world of human resources is full of many regulations and requirements. The HR Hammer is here to help. Submit your questions using the button below. The HR Hammer can provide answers to general questions. Answers are for informational purposes only. The HR Hammer is not an attorney, and information provided here should not be construed as legal advice. Consult an attorney if you plan to proceed with legally binding action.

Q: What’s the difference between exempt and nonexempt?

A: In general, exempt employees are salaried, and are not paid overtime or bound by meal break requirements. Exempt employees are usually executive or management level but their status as exempt is not determined solely by job title or salary. Not everyone in a supervisory position meets the requirements for exempt status. A non-exempt employee is usually paid hourly and must be granted meal breaks and paid overtime in accordance with state and federal laws.

Misclassifying non-exempt employees as exempt could lead to costly legal challenges, so take the time to review how you classify your employees. Read up on the requirements for exempt status, and do a careful review of job duties and responsibilities. You can find information on classification on the Department of Labor’s website. Be sure to also check to see if your state has additional classification requirements.

Q: Am I required to provide my employees with a meal break in California?

A: Yes, California employers must provide a meal break of at least 30 minutes to hourly (non-exempt) employees who work more than five hours per day. The break can be unpaid, and the employee must be relieved of all duty. It is a good idea to have employees take their break away from their workstation to avoid the risk that they may check email or answer a question from a coworker. The break must be taken within five hours of the start of the employee's shift. For example, if an employee starts at 7 a.m., they should clock out for their meal break no later than 11:59 a.m.

If an employee works less than six hours, the meal break can be waived by mutual consent of the employer and employee. Make sure you have a written agreement if you want to give your employees this option.

Keep in mind that you need to provide a second 30-minute meal break if the employee works more than ten hours per day.  This break may be waived by mutual consent of the employer and employee if the employee took their first break and if they work no more than 12 hours per day. Again, make sure you have this agreement in writing.

The Department of Industrial Relations provides detailed information on meal break requirements in California. Also, check the Industrial Welfare Commission (IWC) wage order for your industry for further meal break requirements.

Q: I have an employee who regularly works overtime even though I have told her overtime has not been approved. Do I have to pay her overtime if it is unauthorized?

A: Yes, you must pay an employee for any overtime worked even if that overtime has not been approved. Time worked must be compensated; however, you may take disciplinary action against an employee who works unauthorized time. When an employee works unauthorized overtime, consider a verbal coaching or written warning. If the problem persists after multiple warnings, you may need to consider termination for continued violation of a company policy.

It is important to have an overtime policy that reminds employees that any overtime worked must be pre-approved by their supervisor. Federal law requires that overtime be paid at a rate of at least one and one-half the employee’s pay rate for any hours after 40 in a workweek. Some states have additional requirements, so be sure to check on your state’s laws regarding overtime.