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Meal Breaks

California provides employees expansive meal break rights, and employers often fail to provide their employees all these rights.

In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. (Labor Code Section 512.)

There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. And a subsequent meal period must be called not later than six hours after the termination of the preceding meal period. (IWC Order 12-2001, Section 11(A).)

The law requires meal breaks to be duty-free, which means employees don’t have to do any work during their meal breaks and it’s their time to do what they want including leaving the premises. Unless the employee is relieved of all duty during his or her thirty-minute meal period, the meal period is considered an “on duty” meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay.

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided. (IWC Orders and Labor Code Section 226.7.)

If your employer has failed to provide meal breaks in accordance with the law, you may be owed unpaid wages.

Contact us to learn more about your meal break rights.

 

SOME FAQ REGARDING MEAL BREAKS

1. What are the basic requirements for meal periods under California law?

Under California law (IWC Orders and Labor Code Section 512), employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for employees in the motion picture industry covered by IWC Order 12-2001).

Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer’s premises, the meal period is considered “on duty,” counted as hours worked, and paid at the employee’s regular rate of pay.

An “on duty” meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties.

2. My employer is not allowing me to take a meal period. Is there anything I can do about this situation?

Yes, there is something you can do if you are covered by the meal period requirements of the law. If your employer fails to provide the required meal period, you are to be paid one hour of pay at your regular rate of compensation (this is referred to as meal period premium pay) for each workday that the meal period is not provided. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement or file a lawsuit to recover these unpaid wages.

3. If there is bona fide relief from all duty during a meal period and the employer relinquishes all control over the employee’s activities, but the employee then freely chooses to continue working, is the employer liable for meal period premium pay?

No, the employer would not be liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control (and no discouragement or coercion from the employer against taking the meal period). However, in this circumstance, an employer that knows or has reason to know an employee is performing work during the meal period 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).  See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.

4. Is it OK if I choose to work through my meal period so that I can leave my job 30 minutes early?

No, working through your meal period does not entitle you to leave work early prior to your scheduled quitting time.

5. Can my employer require that I stay on its premises during my meal period?

Yes, your employer can require that you remain on its premises during your meal period, even if you are relieved of all work duties. However, if that occurs, you are being denied your time for your own purposes and in effect remain under the employer’s control and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers.

Additionally, pursuant to the IWC Wage Orders, if you are required to eat on the premises, a suitable place for that purpose must be designated. “Suitable” means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.

6. I regularly work an eight-hour shift. What can I do if my employer doesn’t provide me with a meal period?

You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the premium of one additional hour of pay at your regular rate of compensation for each workday that the meal period is not provided.

Either way, you should speak with an attorney as soon as possible.

7. What can I do if my employer retaliates against me because I asked him why we don’t get a meal period?

If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you ask about not getting a meal period, object to what you believe to be an illegal practice, or because you threaten to enforce your rights by contacting an attorney or the Labor Commissioner’s Office, you can file a lawsuit in court against your employer.

For a free consultation and to learn more, contact us.