Quirky Question #242 – Policing Break and Time Records Pays Off


We are a California employer.   After all the publicity surrounding class actions over meal and break periods, we instituted automatic warnings if employees take too long or too short a meal or rest break. Is anyone really enforcing this kind of discipline or are we wasting our time?

Answer: By Jessica Shiffman and Gabrielle Wirth

Jessica Shiffman

Jessica Shiffman

Gabrielle Wirth

Gabrielle Wirth

There is good news for a change. Not only are many employers implementing similar warnings, but repeated violations may constitute misconduct for the purposes of unemployment benefits, thus disqualifying employees who are fired as a result of such repeated violations from receiving unemployment benefits.

In Irving v. Unemployment Insurance Appeals Board, No. B243417 (September 12, 2014), the California Court of Appeal found that an employee who took four excessively long breaks and falsified his time records committed misconduct and was accordingly disqualified from unemployment benefits. At the EDD administrative hearing, Irving testified that he had falsified his time records based on directions from unidentified supervisors, who told him to do so because his actual schedule did not always match the posted schedule, and he took longer breaks because other employees did. However, Irving did not testify he was directed to actually falsify the information.

Unemployment Code Section 1256 creates a rebuttable presumption that an employee was not discharged for misconduct, but allows the employer to present evidence to the contrary. While the employee testified his long breaks and poor record keeping was a result of his misunderstanding, he did not testify he was specifically given permission to take the long breaks or falsify the time records relating to those breaks. The court rejected his claim, holding that a reasonable person would have “interpreted [Irving’s] actions in taking four excessively long breaks and repeatedly falsifying his time records” as dishonest.

Keep diligently following up on your warnings – they will support a defense to employment and wrongful discharge claims!

About Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience......