Meal and Rest Breaks

California employers are required to make meal breaks available to its non-exempt employees. This means that an employer must relieve the employee of all duties for the meal break.If an employee, who is entitled to a meal break, is not provided a lawful meal break, the employer must compensate the employee one additional hour of pay at the employee’s regular rate of pay for each day a lawful meal break was not provided.

Rule
A meal break cannot be shorter than 30 minutes.
Rule
The first meal break must be taken before the end of the employee’s 5th hour of work and the second meal break must be taken before the end of the employee’s 10th hour of work. There is no requirement that the meal breaks be no more than five hours apart.
Rule
The meal breaks should uninterrupted and the employee must be completely relieved of all duty during the meal break. This means that the employee should not be on-call during the meal break or be required to carry a phone or walkie-talkie during the meal break.
Rule
Meal breaks are unpaid and therefore, the employer cant tell the employee where to take their meal break. This means that the employee is allowed to leave the premises for the meal break.
Rule
The employee can choose to work through their meal break as long as the employer does not pressure the employee to work during the meal break or does not dissuade the employee from taking their meal breaks. This usually occurs when the employer reprimands the employee for not meeting their quota or when the employee can get written up for not completing a task in time.
Rule
An employee can voluntarily choose to work through the meal break if the employer has provided the employee with the meal break.
What is The Labor Commissioner’s Opinion

Description

DLSE Opinion. Letter No.

Hours worked: Meal periods (employee required to remain on premises

1996.07.12

Hours worked: Meal periods (healthcare industry)

1995.11.01

Hours worked: Meal periods restricted to employer’s premises

2001.01.12

Hours worked: Pagers; On Duty Meal Period

1992.01.28

Hours worked: Unrelieved meal periods

1988.01.05

Meal Periods: Fuel Carriers Subject to Federal Safety Regulations

2009.06.09

Meal Periods: On-duty drivers of hazardous & flammable materials

2013.11.15

Meal periods: Impact of Senate Bill (SB) 1208 on an existing collective bargaining agreement

2002.12.09-1

Meal Periods – Obligation to provide

1991.06.03

Meal periods: Private right of action to enforce amounts owed under the meal period provisions of the IWC Orders and Labor Code

2003.10.17

Meal Periods: Purported waiver of state standards

1994.09.28

Private right of action to enforce amounts owed under the meal period provisions of the IWC Orders and Labor Code

2003.10.17

GENERAL RULES FOR REST BREAKS

California employers are required to provide non-exempt employees with off-duty rest breaks. This means that employers must relinquish control over the employee during the rest break and relieve the employee of all duties for the duration of rest break. If an employee, who is entitled to a rest break, is not provided a lawful rest break, the employer must compensate the employee one additional hour of pay at the employee’s regular rate of pay for each day a lawful rest break was not provided.

Rule
Generally, the 10 minute break should be taken in the middle of each of 4 hour work period in so far as practicable.
Rule
Each 10 minute rest break must be consecutive. For example, the rest break cannot be interrupted or broken up into 5 minutes at one time and then another 5 minutes at another time.
Rule
The employee must be completely relieved of all duty during the rest break. This means that the employee should not be on-call during the rest break or be required to carry a phone or walkie-talkie during the rest break.
Rule
A rest break is not the same as a bathroom break. This means that the time an employee goes to the bathroom does not count as a 10-minute rest break.
Rule
The rest break does not need to be provided before the meal period; however, one rest break should be provided before a meal break and another rest break should be provided after the meal break.
What is The Labor Commissioner’s Opinion

Description

DLSE Opinion. Letter No.

Rest breaks

1986.01.0

Rest period provisions

2002.01.28

Rest period requirements

2002.02.22

Rest Periods

1999.02.16

Rest periods

1995.06.0205

Rest periods: Order 16 (on-site construction) Rest periods: CBA exception

2001.09.17

WHAT ARE THE TIMING REQUIREMENTS FOR MEAL PERIODS AND REST BREAKS?

Hours Worked per Day

Rest Break Required

Meal Break Required

Can the Meal Break be waived?

0-3.4 hours

No

No

N/A

3.5 hours to 5 hours

(1) 10 minute rest break

No

N/A

5 hours 1 min to 6 hours

(1) 10 minute rest break

(1) 30 minute meal period

Yes

6 hours 1 min to 10 hours

(2) 10 minute rest breaks

(1) 30 minute meal period

No

10 hours 1 min to 12 hours

(3) 10 minute rest breaks

(2) 30-minute meal periods

Yes (The 2nd meal break can be waived if the 1st meal break was taken) In other words, the employee cannot waive both meal breaks.

12 hours 1 min to 14 hours

(3) 10 minute rest breaks

(2) 30-minute meal periods

No

14-18 hours

(4) 10 minute rest breaks

ARE EMPLOYEES REQUIRED TO REMAIN ON THE EMPLOYER’S PREMISES FOR A BREAK?

With some very limited exceptions, most employees are allowed to leave the employer’s premises to take a meal break and rest break. If the employee is required to remain on the premises for the meal break, the employee is entitled to an additional hour of pay at his or her regular rate of pay for each day a lawful meal break is not provided. If the employee works during the meal break, the employee is also entitled to wages for the hours worked during the meal break. 

With regards to rest breaks, the labor commissioner states that the employer cannot require on-premises rest breaks, even if the rest break is off duty.  However, if the employee is on-call  or not off duty during the rest break, the employee is entitled to an additional hour of pay at his or her regular rate of pay for each day a lawful rest break is not provided. Because rest breaks are paid, the employee is not entitled to wages during the unlawful rest break. 

COMMON BREAK VIOLATIONS

  • The Employer does not provide a meal break and or does not authorize and permit a rest break.
  • The employer does not relinquish control over the employee during the break.
  • The employer does not provide a reasonable opportunity for the employee to take a lawful break.
  • The employer impedes or discourages the employee from taking lawful breaks. For example, the employer is understaffed and/or requires the employee to meet certain quotas or expectations.
  • The employee is provided a meal break that is shorter than 30 minutes.
  • The employer counts the time it takes for the employee to punch in and out for the meal break as part of the meal break (i.e. employee has to wait in line) or the employer counts the time it takes the employee to walk to the where the time clock is located in order to punch in and punch out for the meal break.
  • The employee is provided a rest break that is shorter than 10 minutes
  • The breaks are not consecutive.
  • The employee is required to work during the break.
  • The employee is not relieved of all duty during the break. For example, the employee is required to answer phone calls or carry a beeper.
  • The employee is provided the meal break more than 5 hours after the start of the shift.
  • The employer interrupts the break by providing the employee with work duties.
  • The employee is not allowed to leave the premises to take a break.
  • The employee is required to take a break at his or her desk, workstation, or in the lunchroom.
  • The employee is misclassified as an exempt employee or as an independent contractor.
  • The employer’s policy does not provide that the rest breaks must be provided every four (4) hours of work or “major fraction” thereof.

WHO IS NOT ENTITLED TO MEAL AND REST BREAKS?

  • Executive, administrative and professional employees
  • Outside salespersons
  • Independent Contractors
  • Construction workers; commercial drivers; security officers; or gas and electrical workers if they are covered by a valid collective bargaining agreement

ARE EMPLOYERS REQUIRED TO RECORD MEAL AND REST BREAKS?

California law requires that Employers record the meal break. This means that the employee should clock out and clock in for the full 30-minute meal break. For rest breaks, there is no record recording requirement like there is for the meal breaks. This means that employers are not required to have the employee clock out and clock in for the 10-minute rest breaks.

TYPE OF BREAK

DOES THE EMPLOYER NEED TO RECORD IT?

Meal break

Yes.

Rest break

No.

WHAT IF THE EMPLOYER DOES NOT RECORD MEAL BREAKS?

An employee should not worry. California Code of Regulations, Title 8, §11040(7)(A)(3) provides as follows:

7. RECORDS:
(A) Every employer shall keep accurate information with respect to each employee including the following:
(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.

Rule
If an employer’s records show no meal period given, there is a rebuttable presumption that the employee was not relieved of all duty and no meal period was provided.

What are the Damages if Employee is Not Provided the Proper Break?

Pursuant to Labor Code section 226.7 (b) and the applicable Wage Order, if an employer does not provide an employee with a lawful meal break and/or rest break, the employee is entitled to:

1. One extra hour of pay at the employee’s regular pay for each day that a meal break was not provided and one extra hour of pay at the employee’s regular pay for each day that a rest break was not provided. Court’s refer to this as a “premium” wage.
2. In addition to this premium, the employee may also be entitled to his or her regular rate of pay for the hours worked as a result of the unlawful meal break.
3. If the employer has not compensated the employee with the Premium wage, the employee’s  wage statements are not accurate and the employee may be entitled to additional penalties under Labor Code section 226 (Itemized Wage Statement Penalty).
4. If the employee is no longer employed by the employer, the employee may be entitled to waiting time penalties under Labor Code section 201, 202, and 203 since the employee was not paid all of his or her wages at the time of termination.

Contact a Los Angeles Meal and Rest Break Lawyer

The Law Offices of Morris Nazarian provides representation to employees seeking the payment of overtime wages, minimum wages, missed meal and rest breaks, vacation wages, deductions from wages, severance pay, misclassification, independent contractor cases and other unpaid wages or commissions. We also handle harassment and discrimination claims.

If you have not been provided lawful meal and rest breaks, it is important that you speak to a knowledgeable attorney who understands these complex laws. Los Angeles meal and rest break attorney Morris Nazarian has successfully represented employees who have been denied their well-deserved breaks. Please contact Los Angeles Employment Lawyer Morris Nazarian by calling (310) 284-7333 to make an appointment for a free initial consultation or please fill out the Employment Law Case Evaluation Form and a Los Angeles Employment attorney will call or email you as soon as possible. 

If the meal and rest break violation is company-wide, you and your co-workers may be entitled to bring a class action lawsuit against the employer.