California has some of the more stringent meal and rest period rules in the country; and, as evidenced by the increasing number of class actions against employers for meal and rest break violations, California employers continue to struggle with complying with these laws. The consequence of noncompliance can be incredibly expense, as the following employers discovered …
Year |
Employer |
Class Action Claim |
Settlement |
2014 |
City of Los Angeles |
Employer denied employees off-duty meal periods |
$26 million |
2015 |
Il Fornaio |
Employees did not receive meal periods and rest periods |
$1.5 million |
2016 |
Aurora Vista Del Mar, LLC |
Employees did not receive meal periods and rest periods |
$2 million |
2016 |
Parkview Community Hospital Medical Center |
Employees did not receive meal periods and rest periods |
$2.55 million |
2016 |
Chinese Daily News Inc. |
Employees did not receive meal periods and rest periods |
$7.8 million |
2017 |
TJ Maxx of California, LLC |
Employer failed to provide employees with meal periods |
$8.5 million |
What are a California employer’s obligations with respect to meal periods?
The California Labor Code (§§ 226.7 and 512) and the California Wage Orders require employers to provide meal periods as follows:
- A 30-minute, duty free, unpaid meal period to any employee who works more than five hours in a day. The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
- NOTE: If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. However, if the employee’s workday is more than 6 hours, then the meal period cannot be waived.
- A second 30-minute, duty free, unpaid meal period to any employee who works more than ten (10) hours in a day. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
- NOTE: If the employee’s total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).
How is this obligation met?
An employer’s obligation is to provide employees with a meal period. As the Brinker case clarified, this obligation is met by doing the following:
- Establishing policies that inform employees of the meal periods (and enforcing those policies when meal periods are missed);
- Scheduling meal periods for employees;
- Relieving employees of all duty, relinquishing control over their activities and permitting them a reasonable opportunity to take an uninterrupted 30-minute break and not impeding or discouraging them from doing so.
The Brinker court further stated that employers are “not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.”
What is the timing of the meal period?
As stated above, California law requires that employers provide the first meal period no later than the end of an employee’s 5th hour of work, and a second meal period no later than the end of an employee’s 10th hour of work, but what does this really mean?
Simply put, this means that the employee must be provided with a meal period before he/she has worked 5 hours (for the 1st meal period) and before he/she has worked 10 hours (for the 2nd meal period). In other words, for an employee who works from 8:00am to 5:00pm, he/she must be provided the first meal period as follows:
- Between 8am and 12:59pm (because the first meal period must begin before the employee works five hours or before 1:00 p.m. — i.e., by no later than 12:59 p.m.)
What if an employer fails to provide the meal period?
If an employer fails to provide a meal period (i.e. the meal period is late or the employee’s meal period was not 30 minutes), then the employee is owed a premium wage of 1 hour of pay.
What are a California employer’s obligations with respect to rest periods?
Under the California Wage Orders, employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof) worked by an employee. A “major fraction” language has been interpreted to mean two hours.
The wage orders do not require rest periods when an employee’s total daily work time is less than 3½ hours. Therefore, employees must be scheduled for at least 3½ hours in a workday to be entitled to a 10-minute rest break.
This means that employees are entitled to rest periods as follows:
- An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
- An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
- An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
- An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods
Employees must be completely relieved of all duties during rest periods. Additionally, employers provide “suitable resting facilities” for employees to use during work hours, which must be separate from toilet facilities.
Rest periods are considered “on the clock” and are counted toward total daily and weekly hours worked, and must be paid at the employee’s regular wage rate. Employees may be required to remain on the employer’s premises during rest periods, but they cannot be required to remain “on-call” during rest breaks (i.e. vigilant and available for possible interruption during rest breaks). Instead, employees must be relieved of all duties and free from employer control as to how they spend their time during their rest period.