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?
- 2. Which California employees are entitled to meal and rest periods?
- 3. Can my employer require me to work or be “on-call” during my meal or rest break?
- 4. Can I sue my employer for not allowing me to take my meal or rest breaks?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
1. What are the meal and rest break requirements under California labor law?
The Labor Code sets forth the following requirements for California mandatory breaks:
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.5
Example: Rick is working an 11-hour shift at a fulfillment center.
Rick is entitled to two 30-minute meal breaks over the course of his shift.
However, if Rick takes his first meal break, he and his employer may agree that he will waive the second one.
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.6
But rest periods are not required for employees who work less than three and a half (3 1/2) hours in a day.7
Example: Fern works an 8-hour shift at a nail salon.
Her employer is required to give her a 30-minute meal break under California meal break law.
In addition, her employer is required to give her at least 20 minutes’ worth of rest period during her shift.
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.8
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.9
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.10
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.11
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.12
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.13
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.14
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.
Call us for help….
For questions about California employee meal and rest break requirements or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Work in Nevada? Refer to our article on Nevada rest break laws.
Legal References:
- 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.”)
- Same.
- 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.”)
- Labor Code 512
- Labor Code 512 — Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement, endnote 1 above.
- 8 C.C.R 11040, section 12 (Rest Periods), endnote 3 above.
- Same.
- 8 C.C.R 11040
- Labor Code 515 — Exemptions [from meal and rest break requirements].
- Labor Code 512
- Labor Code 226.7
- 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.”)
- 8 C.C.R 11040, section 11 (Meal Periods), endnote 4 above.
- 8 C.C.R 11040.