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  Are You Getting Your Meal Breaks? California Labour Act

  Posted by Brian Robinson on October 24, 2022 at 3:37 pm

  Can I skip my lunch break and leave early California? Is it permissible for employees to skip their lunch or break periods in order to leave early? Can employees, if paid for it, have an “on duty” meal period?

  No. The California Labor Code § 226.7 invokes penalties against the employer if it fails to provide a meal or rest period.

  What is California meal break law?

  Under California wage and hour law, non-exempt employees must receive a thirty (30) minute lunch or meal break if they work more than five (5) hours in a day. The meal break must be provided within the first 5 hours of the workday. Employees who work more than ten (10) hours in a day are entitled to a second 30-minute meal break.

  Rest breaks under California labor law are required for non-exempt employees who work three and a half (3 1/2) or more hours in a day. Employees are entitled to ten (10) minutes of rest period for each four (4) hours, or a substantial fraction thereof, that they work in a day. 1 2 3

  Below, our California labor law attorneys discuss the following frequently asked questions about meal and rest break requirements for employees:

  1. What are the meal and rest break requirements under California labor law?

  The California Labor Code sets forth the following requirements for meal and rest periods for employees:

  Meal breaks

  Employees who work more than five (5) hours in a day are entitled to a thirty (30) minute meal break. However, an employee may agree to waive that meal break if s/he will not work more than six (6) hours in the day.4 In addition, employees who are working more than ten (10) hours in a day must also be given a second thirty (30) minute meal break. But the employee may waive this second meal break if:

  • His/her workday will be no longer than twelve (12) hours; and

  • S/he did not waive the first meal break.

  Rest breaks

  Rest breaks/rest periods are also required under California labor regulations. The length of required rest periods must be at least ten (10) minutes for each four (4) hours, or substantial fraction thereof, that the employee will work in the day. These rest breaks must be counted as time worked and must be paid time. They must also be in the middle of the employee’s work period, to the extent that this is a practicable. But rest periods are not required for employees who work less than three and a half (3 1/2) hours in a day.

  2. Which California employees are entitled to meal and rest periods?

  Like California overtime laws, California meal and rest period requirements only apply to non-exempt employees.The most important group of exempt employees in California is white-collar exempt employees, who must meet all of the following requirements:

  • Spend more than half of their work time doing intellectual, managerial or creative work;

  • Regularly exercise discretion and independent judgment in performing those duties; and

  • Earn a monthly salary equivalent to at least twice the California minimum wage for full-time employment.

  In addition, California laws on meal and rest breaks do not apply to workers who meet the legal definition of independent contractors. Finally, the meal period requirements of the California Labor Code do not apply to unionized employees in certain industries whose collective bargaining agreements provide for meal breaks on a different schedule. For example, collective bargaining agreement provisions on meal breaks override the California laws for unionized employees who work:

  • in construction occupations,

  • as commercial drivers,

  • as security officers,

  • for electrical or gas companies, and

  • in the motion picture industry.

  3. Can my employer require me to work or be “on-call” during my meal or rest break?

  Generally speaking, employers may NOT require employees to continue working or remain “on-call” during meal or rest breaks.Therefore, if your employer asks that you work while eating during a meal period, or remain on call during a rest period, this is legally equivalent to denying you your meal or rest break. However, employers are not required to ensure that you do no work during your meal or rest break. In other words, if you voluntarily choose to work during a break, your employer is not responsible for that. In addition, so-called “on duty” meal periods, where employees must work through their meal breaks, are permitted only if:

  • The nature of the work prevents the employee from being relieved of all duty (for example, if s/he is a security guard and is the only person on duty); and

  • The employee agrees in writing to stay on duty during meal periods. The employee is allowed to revoke this agreement in writing at any time.

  4. Can I sue my employer for not allowing me to take my meal or rest breaks?

  California employees may sue employers for denying them meal or rest breaks required under the Labor Code or labor regulations. Successful wage and hour class action lawsuits often involve failure to provide meal breaks or rest periods. Employers who do not allow employees to take their meal or rest breaks will owe the employees one hour’s pay for each break that was denied to them. So, for example, let’s say your employer did not allow you to take meal breaks you were entitled to during a year of employment (roughly 250 workdays). S/he would then owe you damages equivalent to 250 hours’ worth of pay at your regular rate.

  California Rest Break Law ChartCalifornia Rest Break Requirements

  • Your boss must give you a rest break of at least 10 consecutive minutes that are uninterrupted.
    Rest breaks must be paid.

  • If you work at least 3.5 hours in a day, you are entitled to one rest break. If you work over 6 hours, you are entitled to a second rest break. If you work over 10 hours, you are entitled to a third rest break.

  • Rest breaks must to the extent possible be in the middle of each work period. If you work 8 hours or so, you should have a separate rest break both before and after your meal break.

  • Your boss may not require you to remain on work premises during your rest breaks.

  • You cannot be required to work during any required rest breaks. [Cal. Lab. C. 226.7]. BUT, you are free to skip your rest breaks provided your boss isn’t encouraging or forcing you to.

  California Meal Break Law ChartCalifornia Meal Break Law Requirements

  • If you work over 5 hours in a day, you are entitled to a meal break of at least 30 minutes that must start before the end of the fifth hour of your shift. BUT, you can agree with your boss to waive this meal period provided you do not work more than 6 hours in the workday.

  • You can also agree with your boss to an on-duty meal break which counts as time worked and is paid.

  • If you work over 10 hours in a day, you are entitled to a second meal break of at least 30 minutes that must start before the end of the tenth hour of your shift. You can agree with your boss to waive the second meal break if you do not work more than 12 hours and you did not waive your first meal break.

  • You must be allowed to take your meal break off work premises and spend your break how you wish, since it is off the clock.

  • You cannot be required to work during any required meal break. [Cal. Lab. C. 512].

  • As of 2012, your boss has an affirmative obligation to ensure that breaks are made available to you but the actual taking of meal breaks is left to the employee. In other words, you are responsible for “breaking” yourself.

  Note, rest breaks and meal breaks are supposed to be separate, they should not be combined. Your boss cannot give you a single 1-hour break and say that that counts as all of your meal breaks and rest breaks.

  Keep in mind, there are many exceptions to the above for certain industries, such as the construction, healthcare, group home, motion picture, manufacturing, and baking industries.

  Can I Sue My Employer for Violating California Meal Break and Rest Break Law?

  Yes you can, and you should. If your employer is denying you meal breaks and rest breaks, you would be entitled to receive a penalty of 1 hour wages per day you were denied any rest breaks, and an additional penalty of 1 hour wages per day you were denied any meal breaks (for a maximum penalty of up to 2 hours wages per day). We can help you file a California labor board complaint. Give us a call at (213) 992-3299. Note, your claims are subject to strict filing deadlines. For meal and rest break violations, the filing deadline is usually considered to be 3 years thanks to a recent California Supreme Court decision. [Murphy v Kenneth Cole Productions, 40 Cal.4th 1094 (2007)], but in certain cases, a 1 year filing deadline could apply.

  I Am an Exempt Salaried Worker, Can I Still Sue My Employer?

  The correct answer is “it depends”. There are many kinds of exemptions under California labor laws. If you are a supervisor, you may fall under the supervisor exemption, otherwise known as the executive exemption. But that exemption has many requirements which your employer may have blown. Also, other kinds of exempt employees are still entitled to meal break and rest break rights. For instance, truck drivers are often considered exempt. However, under California labor laws, they must still receive their meal breaks and rest breaks. Another example are “inside salespeople” who sell products or services while physically stationed at the employer’s office. While normally considered “exempt”, they are still entitled to meal breaks and rest breaks. Again, consult a lawyer to see if your situation qualifies for breaks.

  Legal References:

  1. Labor Code 512 — Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement. (“(a) 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 30 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. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, 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 the employee only if the first meal period was not waived.”)

  2. 8 California Code of Regulations (“C.C.R”) 11040. (“12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”)

  3. Labor Code 512

  4. Labor Code 512 — Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement, endnote 1 above.

  5. 8 C.C.R 11040, section 12 (Rest Periods), endnote 3 above.

  6. 8 C.C.R 11040

  7. Labor Code 515 — Exemptions [from meal and rest break requirements].

  8. Labor Code 512

  9. Labor Code 226.7

  10. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017. (“On the most contentious of these, the nature of an employer’s duty to provide meal periods, we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”)

  11. 8 C.C.R 11040, section 11 (Meal Periods), endnote 4 above.

  12. 8 C.C.R 11040.

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