Author: David Lavi, Esq
July 31, 2024
Subject: When am I entitled to a meal break in California?
In California, employers must provide a meal period of at least 30 minutes for employees working more than five hours per day. If the total work period is no more than six hours, this meal period can be waived by mutual consent. For employees working more than ten hours per day, a second 30-minute meal period is required, unless the total hours worked are no more than 12 and the first meal period was not waived, in which case the second meal period can also be waived by mutual consent (Labor Code Section 512).
Employees in the motion picture industry have different requirements: they cannot work more than six hours without a meal period lasting between 30 minutes and one hour. Subsequent meal periods must begin no later than six hours after the end of the previous meal period (IWC Order 12-2001, Section 11(A)).
If an employee is not relieved of all duties during their 30-minute meal period, it is considered an “on duty” meal period and must be paid at the regular rate. “On duty” meal periods are allowed only when the nature of the work prevents relief from duty and both employer and employee agree in writing. The agreement must allow the employee to revoke it at any time (IWC Orders 1-15, Section 11; Order 16, Section 10). This determination is based on objective criteria, and some job examples include a sole worker in a coffee kiosk, an all-night convenience store, or a security guard at a remote site.
If an employer requires an employee to stay at the work site during the meal period, it must be paid, even if the employee is relieved of all work duties (Bono Enterprises, Inc. v. Bradshaw, 1995).
If an employer fails to provide the required meal period, they must pay the employee an additional hour of pay at the regular rate for each workday the meal period is not provided (Labor Code Section 226.7). This extra hour is not counted as hours worked for overtime calculations.
Employers must designate a suitable place for employees to eat on the premises, except for those in construction, drilling, logging, and mining industries (IWC Order 16-2001). For these employees, employers must provide potable water, soap, or other cleansing agents, and single-use towels for hand washing.
For shifts starting or ending between 10 p.m. and 6 a.m., facilities must be available to secure or heat food and drink, and a sheltered place to consume them, except for certain motion picture industry employees who must be provided with hot meals and drinks if working past midnight.
General Rules:
- Employers in California must provide a meal period of at least 30 minutes if an employee works more than five hours a day. However, if the workday does not exceed six hours, this meal period can be waived by mutual agreement.
- A second 30-minute meal period is required if an employee works more than ten hours. If the total workday is no more than 12 hours, the second meal period can be waived if the first was not waived. This is mandated by Labor Code Section 512.
- In the motion picture industry, employees cannot work more than six hours without a meal period, which must last between 30 minutes and one hour. Subsequent meal periods must start within six hours of the previous meal period ending, according to IWC Order 12-2001, Section 11(A).
On-Duty Meal Periods:
- A meal period is considered “on duty” and must be compensated at the regular pay rate if the employee is not relieved of all duties.
- “On duty” meal periods are only allowed when the nature of the work prevents relief from all duty and both employer and employee agree in writing. The agreement must allow the employee to revoke it at any time.
- Examples of jobs that might require on-duty meal periods include sole workers in coffee kiosks, all-night convenience stores, or remote security posts.
Employer Obligations:
- If an employee must stay on the work premises during a meal period, it must be paid, even if they are relieved of all work duties (Bono Enterprises, Inc. v. Bradshaw, 1995).
- Employers who fail to provide the required meal period must pay an additional hour of pay at the employee’s regular rate for each day the meal period is not provided (Labor Code Section 226.7). This additional hour is not counted for overtime purposes.
- Suitable eating areas must be provided where employees are required to eat on the premises. This does not apply to certain industries like construction or mining (IWC Order 16-2001).
Special Conditions:
- For shifts starting or ending between 10 p.m. and 6 a.m., facilities must be available for securing or heating food and drink, and a sheltered place must be provided to consume them, except for certain employees in the motion picture industry who must be provided with hot meals and drinks if working after midnight.
Frequently Asked Questions
1. What are the basic requirements for meal periods under California law?
- Employees must be given a 30-minute meal period for work periods over five hours. If not relieved of all duties, this period is paid. “On duty” meal periods require a written agreement and are only allowed when job duties objectively prevent relief from duty.
2. How does an employer satisfy its obligation to provide a meal period?
- Employers must relieve employees of all duty, relinquish control, allow them to take an uninterrupted 30-minute break, and not discourage meal periods. Minor exceptions apply for healthcare workers under IWC Orders 4 or 5.
3. What are the timing requirements for meal periods?
- The first meal period must be provided no later than the end of the fifth hour of work. A second meal period is required by the end of the tenth hour. Waivers by mutual consent are allowed under specific conditions.
4. What can I do if my employer doesn’t allow me to take a meal period?
- You can file a wage claim with the Division of Labor Standards Enforcement or sue your employer for meal period premium pay.
5. Is an employer liable for meal period premium pay if I choose to work through my meal period?
- No, if you are relieved of all duties and choose to work, the employer is not liable for premium pay but must pay for the time worked, including any resulting overtime.
6. Can I work through my meal period to leave work early?
- No, this is not allowed unless the nature of the work prevents relief from all duty and there is a written agreement for an “on duty” meal period.
7. Can my employer require me to stay on the premises during my meal period?
- Yes, but the meal period must be paid if you are required to stay on the premises. Suitable eating facilities must be provided.
8. What can I do if my employer doesn’t provide a meal period?
- You can file a wage claim or lawsuit to recover the premium pay for each workday a meal period is not provided.
9. What is the statute of limitations for filing a meal period claim?
- The statute of limitations is three years from the alleged meal period violation, according to the Murphy v. Cole case.
10. What is the procedure after filing a wage claim?
- A Deputy Labor Commissioner will review the claim and may schedule a conference or hearing. If unresolved, the matter could go to a hearing or be dismissed.
11. What can I do if my employer doesn’t pay or appeal the Order, Decision, or Award (ODA)?
- The DLSE can enter the ODA as a judgment against the employer, which you can collect or assign to the DLSE.
12. What if my employer retaliates against me for asking about meal periods?
- You can file a discrimination/retaliation complaint with the Labor Commissioner’s Office or sue your employer.
