California employment law requires employers to provide meal breaks and rest breaks to employees who are not "exempt employees."1
Under California wage and hour law, non-exempt employees must receive a thirty (30) minute meal break if they work more than five (5) hours in a day. Employees who work more than ten (10) hours in a day are entitled to a second 30-minute meal break.2
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 substantial fraction thereof, that they work in a day.3
Below, our California wage and hour lawyers 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.
The California Labor Code sets forth the following requirements for meal and rest periods for employees:
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 work day 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 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.
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 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
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
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 work days). 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.
- 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 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 LC -- Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement, endnote 1 above. See also 8 C.C.R 11040. ("11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. 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. (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.
- Labor Code 512 LC -- 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.
- 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].
- 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 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.")
- 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.")
- 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. ("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.")