This blog series addresses common employment-related issues for cannabis industry professionals.

This post addresses meal and rest break requirements manufacturers and retailers of cannabis products should consider to ensure compliance with applicable state and federal law.

In addition to ensuring accurate timekeeping, employers should be mindful of various state-level meal and rest break laws, if any, that are applicable to their nonexempt employees. For example, California state law generally requires employers to provide nonexempt employees with a paid rest period of 10 consecutive minutes for every four hours of work, or major fraction thereof, and a 30-minute unpaid meal period for every work period of five or more hours in a day. Other states have similar requirements.

Employers in the cannabis industry should make sure that all employees eligible for meal and rest breaks receive those breaks in compliance with applicable law. Failure to provide uninterrupted rest and meal periods may entitle an employee to additional pay and/or penalties under applicable state law and can expose employers to class and collective action. Questions employers should consider when administering meal and rest breaks include:

• Do obstacles exist in the retail, manufacturing, or cultivation settings that prevent nonexempt employees from receiving uninterrupted rest or meal breaks? For instance, are retail staffing levels sufficient to meet customer needs while ensuring that retail employees can take rest and meal breaks without interruption? In the cultivation and manufacturing settings, do the company’s processes for cultivating cannabis and manufacturing products enable employees to step away from the process to take uninterrupted meal and rest breaks? Employers should promptly address and remove such obstacles to avoid claims of interrupted meal and rest breaks.
• Are there exceptions that would allow employees to waive required meal or rest periods? For example, California law permits employees to voluntarily waive a meal period if the total work period per day of the employee is no more than six hours. Similarly, California law permits employees to agree to a paid, on-duty meal period pursuant to a signed agreement if the nature of the work must prevent the employee from being relieved of all duty during the meal period. However, these exceptions often require strict compliance with the statutory requirements.
• Does the employer have a system for documenting all meal and rest breaks, and the reasons for any interrupted or missed breaks? While unpaid breaks should be reflected through the employer’s timekeeping processes, employers should also document employee paid breaks to avoid claims that such breaks were not provided. Employers should also implement a procedure for documenting any missed or interrupted breaks and the reasons an uninterrupted break was not provided.

These questions provide employers with the opportunity to preemptively assess and address concerns with administering required meal and rest breaks. This is one example of the wage and hour issues employers should consider in the cannabis industry. We will issue further guidance on these and related topics. Companies and organizations should work with experienced legal counsel to determine the best approach to ensure compliance with these requirements.