Labor Code 512 requires California employers to give unpaid lunch breaks to non-exempt employees. Lunch breaks must be uninterrupted. Employers cannot require employees to do any work while on their lunch breaks. They also cannot discourage employees from taking one. However, the employer and employee can agree to waive the meal break if the worker's shift is less than 6 hours.
If employers violate Labor Code 512, they can be liable for back pay and penalties.
In this article, our California employment lawyers explain:
- 1. What is California Labor Code 512?
- 2. What types of employees are covered?
- 3. When are employees entitled to a meal break?
- 4. Are meal breaks paid or unpaid?
- 5. Can an employer keep a worker “on-call” during the break?
- 6. What if a worker does not wish to take a meal break?
- 7. What can a worker do if the company violates Labor Code 512?
1. What is California Labor Code 512?
California Labor Code 512 is the state statute that gives certain employees the right to an unpaid meal break during their shift. The law is meant to allow employees to have a rest during their workday. It is also meant to prevent employers from keeping employees on the clock for too long without a break.
To comply with the law, employers must:
- Relieve their employee of all of their duties,
- Let the worker do what he or she wants and go where he or she pleases for at least 30 minutes, and
- Refrain from impeding the worker, discouraging her from taking a break, or try to control where she goes.
Employers do not, however, have to force their workers to take a break. California Labor Code 512 only requires them to give employees the opportunity to take one.
2. What types of employees are covered?
California Labor Code 512 only applies to non-exempt employees.
Non-exempt employees are workers employed in the following types of occupations:
- Mechanical, or
- Other similar roles.1
The following workers are not covered:
- Workers classified as exempt, such as managers,2
- Independent contractors, and
- Unionized employees in certain fields with collective bargaining agreements that other break schedules.
3. When are employees entitled to a meal break?
Workers covered by California Labor Code 512 can be entitled to a meal break if their shift is long enough:
- Less than 5 hours: No required meal break,
- Between 5 and 6 hours: A 30-minute meal break that can be waived by the employee,
- Between 6 and 10 hours: A 30-minute meal break,
- Between 10 and 12 hours: A 30-minute meal break, plus a second 30-minute meal break that the employee can waive if he did not already waive the first one, and
- More than 12 hours: 2 meal breaks of 30 minutes each.
These meal breaks do not have to happen every 5 hours. The first break merely has to occur before the employee has worked more than 5 hours. The second has to happen before the employee has worked more than 10 hours.3
Example: Amy arrives for a 12-hour nursing shift at noon. The law does not require her breaks to happen at 5 pm and 10 pm. Instead, the first break can happen anytime before 5 pm. The second break can happen anytime before 10 pm.
4. Are meal breaks paid or unpaid?
The meal break required under California Labor Code 512 is not paid. Employers can, however, provide a paid lunch period if they choose to do so. It can also become a paid lunch period if the employer requires a worker to take their break “on duty.”
5. Can an employer keep a worker “on-call” during the break?
Employers are only allowed to keep a covered employee “on-call” or “on duty” during their break if:
- The nature of the job keeps the employee from being completely relieved of his duties during break, and
- The employee agrees to stay at work during meal periods, in writing, and the agreement allows the worker to revoke the agreement.4
In these cases, the break is a paid one.
Employers also cannot give employees work to do while they are on break. If the company does give them work, it is treated as if they denied the break entirely, because it interrupts the time off. The company would then be liable to pay "premium pay" for the interruption.
Premium pay is one hour at the worker's regular rate of pay. This hour does not count towards a worker's overtime pay.5
6. What if a worker does not wish to take a meal break?
Employees can waive their meal break if their shift is less than 6 hours long.
If the shift is 6 hours or longer, however, their employer is required to provide a meal break. The meal break is not mandatory, though. The employee can voluntarily continue to work through their break.6
If the employer has reason to know that an employee is working through their break, it must pay them at their regular rate.7
7. What can a worker do if the company violates Labor Code 512?
Employees can sue their employers for not complying with the meal break rules. Wage and hour lawsuits against employers for not leaving workers alone during their breaks are common. They frequently lead to class action claims because numerous workers are victimized.
8 California Code of Regulations 11040(11).
Brinker Restaurant Corp. v. Superior Court, Supra.