June 25, 2020

There are strict guidelines regarding meal breaks for California employees.  While exempt (salaried employees) are not required to make meal breaks, all non-exempt (hourly) employees must take a meal break if their shift exceeds six hours.  Below are some basic facts on meal break rules for non-exempt employees in California.

❏ Timing of Meal Periods

✓ Employees are entitled to a 30-minute unpaid meal period if they work more than five hours in a day, which must start before the end of the fifth hour of the shift (i.e., no later than the start of the employee’s sixth hour of work).  However, if the work period doesn’t exceed six hours, the employer and employee may waive the meal period by mutual consent.  [Cal. Lab. Code § 512.]

✓ Employees are entitled to a second 30-minute unpaid meal period if they work more than 10 hours in a day, which must be provided no later than the end of the tenth hour of work (i.e., no later than the start of the eleventh hour of hour).  This second meal period can be waived by mutual consent if the workday is not longer than 12 hours and the first meal break was not waived.  [Cal. Lab. Code § 512.]

❏ What Constitutes a Meal Break?

✓ In general, meal breaks must be “off duty.”  Employees must be relieved of all duties during their mail breaks.  Employers cannot require them to be “on call.” “On duty” meal periods are permitted only in limited circumstances – when the nature of the work prevents employees from being relieved of all duty (e.g., security guards stationed alone, sole workers at a coffee kiosk, etc.), and the employees agree in writing to stay on duty during the meal periods.  Even so, the employee must be allowed to revoke this agreement in writing at any time.  Further, an “on duty” meal period must be paid.  [Chin, et al., Cal. Prac. Guide Emp. Lit.  (The Rutter Group 2020) ¶ 11:829.22.]

✓ If employers require employees to remain on the premises during meal periods, the meal period counts as “time worked” and must be paid, even if employees are relieved of all duties.  [Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1036.]

❏ Penalties

✓ Employers must give employees one additional hour of pay (at their regular rate of compensation) for each work day the meal break was missed, in addition to pay for the time the employees worked during that period.  [Cal. Lab. Code § 226.7(c).]

✓ Employers will not be subject to penalties for employees not taking a meal break as long as they can show that they “provided” a meal period.  “Providing” a meal period means that:

1.  the employer has informed employees of their right to a meal period and does not impede or discourage them from taking one;

2. the employer has afforded employees the opportunity to take the meal period, relinquishing control over their activities and relieving them of all duties; and

3. the employer maintains accurate time records for covered employees as required by the Labor Code and relevant wage orders.

However, if the employer knows or has reason to know an employee is performing work during the meal period, the employer owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). [Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1034-1041.]

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.