Meal and rest break compliance continues to be the source of a great deal of litigation for California (CA) employers. Meal and rest break laws apply to nonexempt employees in California. Understanding California’s meal and rest break requirements is extremely important. To comply with these rules, employers should be well-educated on the legal requirements of CA break laws, communicate expectations to employees, and must provide nonexempt employees with opportunities to take meal and rest breaks.
This section discusses the meal and rest break requirements that California employers must meet.
Meal Periods:
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 thirty minutes, except 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.
A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, 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 employee only if the first meal period was not waived (CA Labor Code Section 512). There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. Also, a subsequent meal period must be called not later than six hours after the termination of the preceding meal period (CA IWC Order 12-2001, Section 11(A)).
On – Duty Meal Periods
Unless the employee is relieved of all duty during his or her thirty-minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. 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 employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time (CA IWC Orders 1 -15, Section 11, Order 16, Section 10). The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
If the employer requires employees to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period.
Meal Periods on Premises
In all places where employees are required to eat on the premises, a suitable place for that purpose must be designated. This requirement does not, however, apply to employees covered by CA IWC Order 16-2001, on-site occupations in the construction, drilling, logging, and mining industries. For employees covered by CA IWC Order 16-2001, the employer must provide an adequate supply of potable water, soap, or other suitable cleansing agents and single use towels for handwashing.
Under all of the CA IWC Orders except Orders 12, 14, 15, and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink. Under IWC Order 12-2001 for employees in the motion picture industry, hot meals and hot drinks must be provided for employees who are required to work after 12 o’clock midnight, except off-production employees regularly scheduled to work after midnight.
Missed Meal Period
If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided. This additional hour is not counted as hours worked for purposes of overtime calculations and must be paid on the next paycheck (CA IWC Orders and Labor Code Section 226.7). Employees have up to three years to file a claim for unpaid wages.
Rest Breaks:
California employers must authorize and permit uninterrupted rest breaks for all nonexempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at a minimum rate of 10 minutes for every four hours worked, or “major fraction” thereof. Anything over two hours is considered by the courts to be a “major fraction” of four. The rest period is counted as time worked and therefore, the employer must pay for such periods. Employers must relieve employees of all duties during rest breaks and relinquish any control over how employees spend their break time. Employers are also required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the restrooms.
With respect to the taking of rest periods, an exception exists under CA IWC Order 5-2001, Section 12(C) for certain employees of 24-hour residential care facilities who may have their rest period limited under certain circumstances. Another exception to the general rest period requirement is for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who shall have additional interim rest periods during periods of actual rehearsal or shooting (CA IWC Order 12-2001, Section 12 (C)).
Missed Rest Break
If any rest break is not given or is interrupted, you owe the employee one hour of pay at the regular rate of pay, which you must include on the next paycheck.
Compliance with CA meal and rest period requirements is extremely important and are designed to allow employees to reset both their mind and bodies. Failing to provide adequate meal and rest breaks for employees can come with consequences and fines. To recuperate wages for missed breaks, employees can file a claim with the Labor Commissioner’s Office, up to 3 years from the date of offense, or they can file a lawsuit in court against the employer. Visit the CA Department of Industrial Relations website for more information on how to comply with these laws.
Dir, and State of California. “Meal Periods.” Division of Labor Standards Enforcement (DLSE), 11 July 2012, www.dir.ca.gov/dlse/faq_mealperiods.htm.
Dir, and State of California. “Rest Periods/Lactation Accommodation.” Division of Labor Standards Enforcement (DLSE), April 2021, www.dir.ca.gov/dlse/faq_restperiods.htm
