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Meal and Rest Breaks for 1099 Independent Contractors

Were you hired as an independent contractor but you are performing tasks that are crucial to the company's products and services? If this is the case, you could be a worker who has been unlawfully misclassified as an independent contractor. That means one of the things you may need to claim from your boss is meals and rest breaks.  Fortunately, if you believe your boss is engaging in this illegal practice, consult with a team of experts at the Orange County Workers Compensation Attorney. We will be glad to fight for your rights.


Learning Who an Independent Contractor Is

Generally speaking, you are considered an independent contractor if you are in your business. You are entitled to:

  • Take or refuse work
  • To work for or with as many clients as you wish
  • Set the price for your work
  • Choose how to work, and
  • Determine when and where to work

You are also expected to work away from your clients' place of business, offer specialized skills, and supply your equipment.

An employee, on the other hand, does the following:

  • Works for a single company at a time at the employer's place of business
  • Follows schedules and rules set by the employer
  • Takes the wage or salary offered by their employer
  • Is subject to their employer's direction and supervision, and
  • Performs tasks that benefit the company's business

Additionally, an employee has a right to be paid whether their employer makes profits are not.

One of the best ways to differentiate between an independent contractor and an employee is about work delivered. If you provide products or services that are integral to your employer's core business, then you are a worker. For instance, the labor department recently classified uber drivers as employees because they pick up and deliver passengers, a service that the firm exists to offer.


How Federal Employment Law Defines an Independent Contractor

Under the Fair Labor Standards Act (FLSA), there isn't a test or rule used to determine whether an employee is a worker or an independent contractor. Instead, the following factors as far as the entire situation and activity is concerned need to be put into consideration:

  • The level to which services offered are an essential part of the leader's business
  • The principal's degree and nature of control
  • Contractor's opportunities for loss and profits
  • The level of independent business operation and organization, and
  • The permanency of the relationship

If your employer has broken federal labor laws, you could be awarded liquidated damages that are equivalent to unpaid wages and interest. This sums to double damages. 


Rest Breaks in California

Also referred to as rest periods, rest breaks are also mandatory under labor rules and regulations. The rest period should be ten minutes for every four hours or significant fraction thereof, in which a worker will perform their duty on a given day.

The rest breaks should be counted as time work and should be paid time. Also, they should be in between the worker's work period, to the practical level.

It is worth noting that rest periods aren't mandatory for workers working not more than 3 1/2 (three and a half) hours in a shift.


What are Meal Breaks in California?

According to the Labor Code, all workers who work at least five hours daily should have a thirty-minute meal and rest break. Nonetheless, if you are working not over six hours daily, you can waive your meal break.

If you work at least ten hours in a shift, you're entitled to another thirty-minute meal period. And if you are working not over twelve hours daily, you can waive your second meal and rest break as long as you didn't waive your first meal break.

For instance, you are required to work for eleven hours in a retail store. Your employer is supposed to offer two thirty-minute lunch breaks throughout your shift. However, both you and your employer could agree that you waive your second lunch break provided you didn't waive the first one.


Employees with a Right to Meal and Rest Breaks

Just like overtime laws, lunch, and rest break requirements do not apply to exempt employees. The largest and most significant category of exempt workers is white-collar exemption workers who meet the requirements below:

  • Spend approximately fifty percent of their total work time executing managerial, creative, or intellectual tasks
  • Regularly exercise independent judgment and discretion in doing their work duties, and
  • Make a monthly salary that is equal to twice the least wage for full-wage employment

Moreover, meal period requirements don't apply to unionized employees in businesses whose collective bargaining agreements offer for meal periods on a diverse schedule. These could include workers working:

  • As security officers
  • As commercial drivers
  • In the construction industry
  • For gas or electrical firms, and
  • In motion picture business


Is your Meal Break Paid or Not?

Your company doesn't have to pay you for a meal break. Instead, the employee is supposed to offer a meal break if you are working at least five hours a day.

Most employees don't take meal breaks if the breaks are not paid. Instead, the workers choose to go home early. Nevertheless, you can't waive your meal break if you are working at least six hours in a shift, even if you aren't paid for the meal and rest period.

If you aren't relieved of all duty in the course of your meal break, you are well-thought-out to be on duty. On-duty meal break should be totaled as hours worked as well as compensated in your standard pay rate.  Moreover, on-duty meal periods are only allowed:

  • When your job's nature hinders you from being relieved of all duties (For instance, you are security personnel and the only individual on duty) and
  • When you have agreed to use a written agreement to be on duty in the course of your meal and rest breaks. You can revoke the arrangement in writing at any time.


Can an Employer Cancel a Meal Break if it Gets Busy?

Your boss can't cancel your meal break. If the boss asks you to go back to work while you are on your lunch break, then that is the same as denying you the required meal period. Denying you a lunch break is breaking the labor laws.

It is worth noting that your employer is not supposed to ensure that you take the lunch break. That means if you voluntarily choose to continue working when you have a lunch break, your boss cannot be held accountable.


What to Do if Your Employer has Misclassified you as an Independent Contractor

Both California and federal laws offer you a means to put your rights into effect if your employer has wrongly classified you as an independent contractor. If you're a worker and not an exempt employee under California wage and hour law, you have a right to meal and rest break.

To simplify it, you can pursue a wage and hour lawsuit against your employer. You are entitled to be awarded an hour's pay at your rate for every break that you didn't receive.


What to do if You Signed a Contract that Stated that You are an Independent Contractor

It's common for a hiring arrangement to have an independent contractor agreement in which you agree that you are not an employee but an independent contractor. Fortunately, the courts will not assume you're an independent contractor because you signed a contract indicating that you are.

Like mentioned earlier, you can be a worker even if you signed a contract declaring that you are an independent contractor. What is of importance is whether the relationship with the individual hiring you and the nature of work states that it's an employment relationship.


Filing a Wage and Hour Claim in California

A wage and hour claim is a compliant that employees bring against their boss (whether current or former) for unpaid compensation. The guide below outlines the filing of a claim process with the Division of Labor Standards Enforcement (California DLSE).

Step 1: Choosing the Most Effective Option for Filing a Meal Period Claim

Workers who desire to recover compensation for meal and rest break denial have numerous options. Raising the dispute with your boss and then resolving it is one such option. However, in most cases, employers do not honor agreement terms.

When your employer misclassifies you as an independent contractor hence fails to offer you meal and rest periods, you have three options:

Filing a Claim in a Court of Law

This lawsuit is different from the wage claim that is settled outside the court. Therefore, the suit is a formal process that can be time-consuming, complicated, and costly.  

Federal Wage/hour Claims

The FLSA sets the minimum standards that employers should follow. The Fair Labor Standards Act, like the California Wage and Hour Law, gives a guideline to workers who bring a wage/hour claim with the Wage and Hour Division of the Labor Department. In most instances, filing a claim with the Fair Labor Standards Act is not as effective as pursuing a claim under California's Labor Code.  This is because California has more protections for workers than the federal law.

Filing a Claim with DLSE

On top of the federal protection, the Labor Code covers workers in the state of California. California administrative authorities write the Labor Code. Most employees choose to file their wage claim with the California DLSE because:

  • It is more pocket-friendly, less risky, and faster
  • DLSE can issue a summons that requires witnesses to show up at the hearings
  • DLSE can ask employers to present documents, and
  • Lawyers can represent workers at the hearings

Step 2: Preparing the Claim

You can file a claim against your employer by completing an Initial Report or Claim  (DLSE Form 1) and then submitting it to the California DLSE.

It is important to note that the Initial Report or Claim can't ask a settlement of claims associated with unfair business or fraud practices. These claims are outside the Labor Commissioner's jurisdiction and will require to be settled in a suit brought in court.

Additionally, you must highlight every wage claim you have against your employer. Failure to identify all claims could hinder you from raising the claims in the future.

Step 3: Collect all Supporting Documents

You might also require to include additional documents to your wage and hour claim. Presenting supporting documents makes it easier for California DLSE to understand your complaint, increases your credibility, and speeds up the time it takes DLSE to investigate.

This could include completing DLSE Form 55 and giving details of the missed meal and rest breaks in the right columns.

You should present copies of supporting documents and employment contracts. It could be essential to provide the original copies as proof should your claim go to a hearing. 

Where to File Your Claim

Currently, the DLSE doesn't accept electronic claims. Instead, you should submit your claim in person or via email to any district office of the DLSE. This is because you are required to include your original signature on the form.

It is wise to file your claim with a local office that deals with wage/hour disputes for the region where you did the work. If DLSE Form 1 is brought to the incorrect office, the California DLSE will hand it over to the right district hence resulting in unnecessary delays.

The Way Forward

Once the Initial Claim or Report is filed, your claim will be assigned to a Labor Commissioner. Initially, the DLSE Form 1 isn't an official complaint against your boss. Instead, it's a method used by DLSE to determine the merit of your claim.

Within thirty days after filing your claim, the DLSE will issue a notice which it plans to do the following to both you and the company hiring you:

  • Hold a claim hearing
  • File a civil lawsuit in court, or
  • Fail to take an action

Should the evaluation suggest that your claim is worth pursuing, the California DLSE will schedule a settlement conference.

Step 4: Settlement Conference

In the event the DLSE finds the claim worth pursuing, they will send a Notice of Claim Filed and Conference to you and your employer. Under DLSE's policy, the settlement conference should be held thirty days after the notice is sent.

A settlement conference is a meeting between a deputy labor commissioner, an employee, and their employer. During the meeting, both the employer and employee will give their side of the story to the commissioner and will discuss if the claim should proceed to the next level (hearing). The deputy labor commissioner will suggest different settlement options.

If you fail to show up at the conference, your claim is dismissed. And if your boss fails to appear, your claim will proceed to a hearing.

If you reach an agreement at the settlement conference, you should understand the settlement conditions. It is, therefore, a brilliant idea to consult your employment attorney before signing the settlement agreement.

Step 5: Waiting for a Notice of Hearing

In case your claim is not dismissed or resolved at the conference, the compliant will be prepared for your signature. This complaint is likened to the formal commencement of your complaint procedure. The California DLSE will then schedule your claim for a Berman hearing.

The Berman hearing notice should be sent within ninety days from when the deputy decided a hearing was essential. The hearing notice, together with a complaint copy that has the compensation amount requested, will be served by mail.

Employer's Answer

The employer should bring a response to the complaint within ten days after they are served with the complaint. The employer's answer should be completed on California's DLSE's employer's answer form.  The response must include the defenses that your boss wishes to count on.   

Attending Berman's Hearing

A Berman hearing is less formal compared to a lawsuit. The Deputy Labor Commissioner, who functions as a hearing officer, only considers proof which is appropriate to your claim. Since you are the one who bears the burden of proof in the denial of meal and rest breaks violation, you will be the first to present evidence. Then the company hiring you will challenge your claim.

Notably, you will still be needed to present evidence for your claim, even if your employer fails to file their answer or appear at the hearing.

If you plan to present supporting documents, such as the record of the number of hours you have worked, it is crucial to use those developed while working.

Every party should arrange for their witnesses. To be sure your witnesses will show up, you can get a subpoena (summon) from the California DLSE. The subpoena can also be used to compel the presentation of documents by your boss at the Berman hearing.

Step 6: Reviewing the Order and Deciding Whether to File an Appeal

The hearing officer should make an order which denies or accepts relief within fifteen days following the Berman hearing. The order will give details of the officer's decision and will be served to all parties involved via mail.

In the event the order is in your favor, it will specify penalties and other compensation damages your employer owes you.

Appealing the Order

Should either party be unhappy with the DLSE order, they can file an appeal with the superior court within ten days after the order is issued. The superior court will decide, hinged on the proof presented instead of going through the DLSE's order. You should consider having a lawyer by your side to increase your chances of a successful claim.

Attorney's Charges on Appeal

You could be asked to cater for any attorney's fees incurred by your company if you appeal and lose. If the employer appeals and the court orders that you receive compensation, your employer should take care of attorney's fees.

The Finality of DLSE's Order

If there is no appeal taken, the California DLSE's order will become final. The California DLSE should bring a copy of their decision in court. The court will then enter judgment per the order's terms. 

Class Action Lawsuits

Your employment attorney will tell you that it is common for them to help misclassified independent contractors in filing a class-action lawsuit against an employer. Bringing a claim alone is impractical. Therefore, a class action may be used to seek compensation for a group of wrongly classified independent contractors denied meal periods by the same defendant.

For your class action to be certified, you should establish that there is a community of interest among class members as well as an ascertainable class. The community of interest is determined by:

  • A principal common question of fact or law
  • Class representatives who have defenses or claims distinctive of the group, and
  • Class representatives who will represent the group.

You should also prove that filing your claims in a class action will offer significant benefits to you and the court. This involves establishing that a wage/hour class action is superior to alternative ways of resolving disputes like individual litigation.


Frequently Asked Questions

  1. What is the Statute of Limitations for Pursuing a Wage and Hour Claim?

The deadline for bringing a wage and hour claim against the company hiring you is three years from the date the latest violation took place.

  1. Can the Company Hiring You Discriminate against You for Filing a Claim?

It is well-thought-out wrongful termination for a company to fire you for complaining about meal rest denial or bringing a claim. Other types of retaliation, such as being assigned to less desirable shifts, increased workload, being denied promotion, or training, are also forbidden.


Consult a Reliable Employment Law Attorney Near Me

Are you an independent contractor? Faced with pressure to reduce cost, most employers in Orange County hire ‘'independent contractors'' to do irregular or specialized tasks. This practice results in misclassified independent contractors losing compensation as well as benefits such as meal and rest breaks. Because employment law can be challenging to understand, it is wise to seek legal advice from a reliable attorney like the Orange County Workers Compensation Attorney. Call us today at 949-423-3212 to evaluate your case. 

We have other offices to serve you in Southern California: Los Angeles workers comp attorney & Long Beach workers comp attorney


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