Meal & Rest Breaks
In California, an employer may not employ an employee for a work period of more than 5 hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee.
A second meal period of not less than 30 minutes is required if an employee works more than 10 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.
There is an exception for employees in the motion picture industry, however, as they may work no longer than 6 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 6 hours after the termination of the preceding meal period.
Unless the employee is relieved of all duty during their 30 minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay.
An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time.
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. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
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.
If an employer fails to provide an employee a meal period in accordance with applicable law, 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. This additional hour is not, however, counted as hours worked for purposes of overtime calculations.
In all places where employees are required to eat on the premises, a suitable place for that purpose must be designated. This requirement does not, however, apply to employees working in "on-site occupations" in the construction, drilling, logging and mining industries. For these employees, the employer must provide an adequate supply of potable water, soap, or other suitable cleansing agent and single use towels for hand washing.
If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink.
In the motion picture industry, hot meals and hot drinks must be provided for employees who are required to work after 12 o'clock midnight, except off-production employees regularly scheduled to work after midnight.
Q. What are the basic requirements for meal periods under California law?
A: Under California law, employees must be provided with no less than a 30-minute meal period when the work period is more than 5 hours (more than 6 hours for employees in the motion picture industry). Unless the employee is relieved of all duty during the entire 30-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for 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.
Q. How does an employer satisfy its obligation to provide a meal period according to the law?
A: An employer is not required to ensure that no work is performed, but an employer must do more than simply make a meal period “available.” In general, an employer must actually relieve employees of all duty, relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please), and must not impede or discourage employees from taking their meal period.
Employers may not undermine a formal policy of providing meal periods by pressuring employees to perform their duties in ways that omit breaks (e.g., through a scheduling policy that makes taking breaks extremely difficult).
Which particular facts in any given case will satisfy the employer’s obligation to provide bona relief from all duty may vary from industry to industry. Consult an attorney experience in employment law to learn the employer's obligations in your industry.
Q. What are the timing requirements for when any required first or second meal period must be provided during the workday?
A: In general, when an employee works for a work period of more than 5 hours, a meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, no later than the start of the employee’s 6th hour of work).
When an employee works for a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s 10th hour of work (in other words, no later than the start of the employee’s 11th hour of work).
The foregoing rules are subject to certain waivers by mutual consent (as explained above), and different rules apply to employees in the motion picture industry.
Q: What action can an employee take if the employer is not allowing the employee to take a meal period?
A: If the employee is covered by the meal period requirements of the law, and the employer fails to provide the required meal period, the employee is to be paid one hour of pay at the employee's regular rate of compensation (this is referred to as meal period premium pay) for each workday that the meal period is not provided. If the employer fails to pay the additional one-hour's pay, the employee may file a wage claim with the Division of Labor Standards Enforcement.
Q: 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?
A: 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).
Q: Can an employee choose to work during their meal period so they can leave work 30 minutes early?
A: No, working through a meal period does not entitle the employee to leave work early prior to their scheduled quitting time. In order for an "on duty" meal period to be permitted under the law, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time.
Q: Can an employer require its employees to stay on its premises during their meal period?
A: Yes, an employer can require the employees remain on its premises during their meal period, even if the employees are relieved of all work duties, but the meal period must be paid. Minor exceptions to this general rule exist regarding healthcare workers.
If employees 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.
Q: What action can an employee take if the employer does not provide a meal period during an 8-hour shift?
A: The employee can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or file a lawsuit in court against the 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.
Q: Are California Employers required to provide employees with rest breaks during the workday?
A: Yes. California employers must provide employees covered by the rest period laws a net 10-minute paid rest period for every 4 hours worked or major fraction thereof. The rest period, insofar as is practicable, should be in the middle of the work period. A rest period is not required for employees whose total daily work time is less than 3 1/2 hours.
The rest period is defined as a “net” 10 minutes, which means that the rest period begins when employees reach an area away from the work area that is appropriate for rest. Employers must provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.
Exceptions exist for certain employees of 24-hour residential care facilities whose rest periods may be limited under certain circumstances. Another exception exist for employees engaged in strenuous physical activities who shall have additional interim rest periods.
For employees in certain on-site occupations, employers may stagger rest periods to avoid interruption in the flow of work and to maintain continuous operations, or they may schedule rest periods to coincide with breaks in the flow of work that occur in the course of the workday. Rest periods must take place at employers designated areas which may include or be limited to employees immediate work area.
Employers who fail to provide employees with the appropriate rest period, must pay employees one additional hour of pay at employees’ regular rate of pay for each workday the rest period is not provided (not one additional hour of pay for each rest period that was not provided during that workday).
Q: Can an employee choose to work through their rest periods so they can leave work early?
A: No. In California, working through a rest period does not entitle an employee to leave work early or arrive late.
Q: Can California Employers require their employees to stay on the work premises during their rest period?
A: No. California employers must relieve employees of all duties and relinquish control over how they spend their time during rest periods.
Q: Can California Employers require employees to keep in radio communication on a rest period?
A: No. “On-call rest periods” are prohibited in California. This rule does not apply however to on-call shifts or on-call meal periods.
Q: Do employees use of toilet facilities during their work period count as a ten minute rest break?
A: No. California law prohibits employers from requiring employees to count any separate use of toilet facilities as a rest period. The law requires suitable resting facilities be in an area “separate from toilet rooms.” Employers may “reasonably” limit the amount of time employees may be absent from their work station, and employees who use the toilet facilities while on an authorized break may not extend the break time by doing so.
Q: Must California Employers provide employees that smoke additional rest periods to smoke?
A: No. Being a smoker does NOT entitle employees to additional breaks.
Q: Must California Employers provide female employees who are breast feeding a child with opportunities to take breaks for lactation purposes?
A: Yes. California employers must provide female employees who are breast feeding their child with adequate break time and/or a place to express milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided employees. Break time for employees that do not run concurrently with the rest time authorized for employees need not be paid.
Employers shall make reasonable efforts to provide employees with the use of a room or other location, other than a toilet stall, in close proximity to the employees’ work area, for employees to express milk in private. The room or location may include the place where employees normally work if it otherwise meets certain requirements. Employers are not required to provide employees break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.
Employers that fail to comply with this law may be issued a civil citation ($100.00 for each violation) for violating this law.
Q: What is the applicable statute of limitations on filing a meal or rest period claim?
A: A claim must be filed within three (3) years of the alleged meal period violation.
Q: What is the procedure that is followed after a wage claim is filed?
A: After a claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine how best to proceed. Initially, the claim can be referred to a conference or hearing, or dismissed.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. A conference is held to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the matter is usually referred to a hearing or dismissed for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner's hearing will not be the basis for the court's decision.
In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
Q: What can an employee do if they prevail at the hearing and the employer does not pay or appeal the Order, Decision, or Award?
A: When the Order, Decision, or Award (ODA) is in the employee's favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, the employee may either try to collect the judgment themselves or assign it to DLSE.
Q: What action can an employees take if the employer retaliates against them for asking why they do not get a meal or rest period?
A: If the employer discriminates or retaliates against the employees in any manner because the employees asked about not getting a meal or rest period, object to what they believe to be an illegal practice, or because an employee filed a claim or threaten to file a claim with the Labor Commissioner, the employee can file a discrimination-retaliation complaint with the Labor Commissioner's Office or file a lawsuit in court against the employer.
If you have any further questions or need any additional information about meal & rest periods, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
Copyright Law Office of Stephen Fiegel – All rights reserved.