California wage and hour law requires employers to provide lunch or meal breaks to employees who work a minimum number of hours.
Under Labor Code 512, non-exempt employees who work more than 5 hours per day must receive a minimum meal break of 30 minutes. If the employee works for more than 10 hours per day, the employee must be provided a second meal break of at least 30 minutes.1
Below, our California labor and employment law attorneys discuss the following frequently asked questions about lunch break rules and laws for California employees:
- 1. What are the lunch break requirements under California labor law?
- 2. Which California employees are entitled to a lunch break?
- 3. Is my lunch break paid or unpaid?
- 4. Can my employer require me to be “on-call” during my lunch break?
- 5. Can my employer cancel my lunch break if it gets busy?
- 6. Can I sue my employer for not allowing me to take my lunch break?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
The California Labor Code provides that employees who work more than five (5) hours in a day are entitled to a thirty (30) minute meal break. However, if the employee is working no more than six (6) hours in a day, the employee may waive their meal break.2
Employees who are working more than ten (10) hours in a day must also be given a second thirty (30) minute meal break. However, if the employee is working no more than twelve (12) hours in a day, the employee may waive their meal break, but only if they did not waive the first meal period.3
|Hours Worked||No Lunch Break||Lunch Break Required||Second Lunch Break Required|
|Less than 5 hours||No lunch break required|
|5 or more hours but less than 6 hours||30-minute lunch break (waivable by employee)|
|6 or more hours but less than 10 hours||30-minute lunch break required|
|10 or more hours but less than 12 hours||30-minute lunch break required||Two 30 minute breaks required (one waivable by employee)|
|12 or more hours||30-minute lunch break required||Two 30 minute breaks required|
Example: Alan is scheduled to work 11 hours and 30 minutes at a retail job during the holiday season. Alan’s employer is required to provide two 30-minute meal breaks during the course of Alan’s shift.
However, Alan and Alan’s employer may both agree that Alan will waive the second meal break as long as Alan did not waive the first meal break.
Non-exempt employees are entitled to a meal break under California labor laws. This includes “persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis.” 4
There are a number of workers who may not fall within the standard lunch break requirements of non-exempt employees. This may include exempt employees, independent contractors, and unionized employees in certain industries.
Some employees who are exempt from the standard lunch break laws include persons employed in administrative, managerial, executive, or professional capacities.5
In order to be considered an exempt employee in California, employees must meet the following requirements:
- Spend more than one-half of their work time performing intellectual, managerial or creative work;
- Customarily and regularly exercise discretion and independent judgment in performing those job duties; and
- Earn a monthly salary equivalent to at least twice the California minimum wage for full-time employment.6
In addition, California laws on lunch breaks generally do not apply to workers who qualify as independent contractors. There are a number of factors that are used to determine whether a worker is an employee or an independent contractor. Workers hired as an independent contractor may actually be in an employment relationship with the employer and protected by California wage/hour, lunch break, and labor laws.
Example: Johnson is hired by an employer for an “independent contractor” job. Johnson enters into a contract for the job, describing his position as an independent contractor. Johnson’s employer tells Johnson that he is an independent contractor and not eligible for a lunch break.
However, because of the control Johnson’s employer has over the job, Johnson would be considered an employee. Johnson may be eligible for a lunch break under California labor laws in spite of the terms of the contract and what the employer said.
Certain Unionized Employees
Lunch break requirements of the California Labor Code do not apply to certain unionized employees. This includes unionized workers in certain industries with a collective bargaining agreement that provides other lunch breaks requirements. In California, these industries may include:
- Motion picture industry
- Broadcasting industry
- Wholesale baking industry
- Commercial drivers
- Construction occupations
- Security officers
- Electrical, gas, or public utility companies7
In general, your employer is not required to pay you for your lunch break. An employer is required to provide a lunch break if the employee is working for 5 or more hours in a shift but the employer does not have to pay the employee for the break time. Some employers may provide a paid lunch break to employees but it is not required for non-exempt employees under California labor laws.
Many workers may not want to take a lunch break if they are not being paid. Instead, employees may prefer to go home early. However, an employee cannot waive his or her lunch break if the employee is working 6 or more hours in a day, even if they are not getting paid for the break. An employee can only waive a meal break if they are working less than 6 hours a day.
An employee who is not relieved of all duty during his or her lunch break is still considered “on duty.” This includes employees who are relieved of all duties but must remain on the work site. An “on duty” meal period is counted as hours worked and must be compensated at the employee’s standard rate of pay. “On duty” lunch breaks are only permitted when the nature of the job prevents the employee from being relieved of all duties and by written agreement. 8
In general, an employer may NOT require employees to continue working during a break or remain “on-call” during a meal or rest break.9
Certain jobs may require the employee to remain “on-site” or at the work facility during their lunch break. “On-duty” meal periods are required to be paid at the employee’s standard rate of pay.
An “on duty” lunch break is only permitted where:
- The nature of the work prevents the employee from being relieved of all duties; and
- The employee agrees in writing to stay on-site during meal periods and the written agreement states that the employee may revoke the agreement, in writing, at any time.10
Your employer cannot cancel your lunch break. If an employer tells an employee that they have to get back to work while they are on their lunch break, this is the equivalent to denying the employee’s meal break. Denying a required meal break is a violation of California labor laws.
However, employers are not required to make sure you take your lunch break. Employers are required to provide a meal break but are not required to enforce the employee’s meal break period. If an employee voluntarily continues to work when he or she has a meal break, the employer is not responsible.11
Example: April works at a shoe store. April goes on her lunch break. After a couple of minutes, a large group of shoppers come into the store looking to buy shoes. April’s boss tells April she needs to come back immediately and she can take her lunch later on. April’s boss has effectively denied April’s lunch break in violation of California labor laws.
However, if April decides to skip her lunch break because she wants to make a sales commission, April’s employer may not be responsible because April voluntarily decided to continue working.
California employees may file a wage and hour lawsuit against employers for denying lunch breaks required under California labor laws. Successful wage and hour class action lawsuits often involve failure to provide meal breaks or rest periods.
Filing a claim under the Private Attorney General Act (PAGA) is another option.
Employers who do not allow employees to take their meal breaks will owe the employees one hour’s pay for each lunch break the employee was denied.12
Example: Gerrard works in a comic book shop every Saturday for a 7-hour shift. Gerrard’s employer incorrectly tells Gerrard that he is not entitled to a break because he only works one day a week.
After one year, Gerrard learns that his employer wrongfully withheld his meal breaks for 52 weeks. Gerrard files a lawsuit against his employer for denying lunch breaks as required by California labor laws. If Gerrard is successful in his lawsuit, Gerrard’s employer would owe Gerrard damages of 52 hours at his regular salary--one hour for each of the 52 lunch breaks Gerrard was denied.
Call us for help…
For questions about California workers’ lunch break rules, the timeclock rules for hourly employees, 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? Learn about Nevada lunch break laws. Also see our article on How many hours do you have to work to get a lunch?
- Labor Code 512 LC — 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.”)
- 8 C.C.R 11040 contains provisions on meal and rest periods. (“1. Applicability of Order This order shall apply to all persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities.”)
- Labor Code 515 LC — Exemptions from meal and rest break requirements. (“(a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.”)
- Labor Code 512 LC — Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement. (“(d) If an employee in the motion picture industry or the broadcasting industry, as those industries are defined in Industrial Welfare Commission Wage Order Numbers 11 and 12, is covered by a valid collective bargaining agreement that provides for meal periods and includes a monetary remedy if the employee does not receive a meal period required by the agreement, then the terms, conditions, and remedies of the agreement pertaining to meal periods apply in lieu of the applicable provisions pertaining to meal periods of subdivision (a) of this section, Section 226.7, and Industrial Welfare Commission Wage Order Numbers 11 and 12. (e) Subdivisions (a) and (b) do not apply to an employee specified in subdivision (f) if both of the following conditions are satisfied: (1) The employee is covered by a valid collective bargaining agreement. (2) The valid collective bargaining agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final and binding arbitration of labor disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate. (f) Subdivision (e) applies to each of the following employees: (1) An employee employed in a construction occupation. (2) An employee employed as a commercial driver. (3) An employee employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, and who is employed by a private patrol operator registered pursuant to that chapter. (4) An employee employed by an electrical corporation, a gas corporation, or a local publicly owned electric utility.”)
- Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968. “An employee must be paid for all hours during which he or she is subject to the employer’s control, including meal periods.” This includes meal times where the employer requires the employee to remain at the work site or facility during the meal period, even where the employee is relieved of all work duties during the meal period.
- Labor Code 226.7 LC — “Recovery period” defined; mandated meal, rest, or recovery periods; requirement to work prohibited; application of section. (“(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.”) See also Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260. (“What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”)
- 8 C.C.R 11040, section 11 (Meal Periods), (“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 parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”)
- 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. (“11 . . . (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. . . . 12 . . . (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”)