California has detailed rules regarding meal breaks for employees. Employees have a right to take an uninterrupted meal period of at least thirty (30) minutes for every five (5) hours worked. It is not considered a valid meal break if it is not long enough or if the employee is interrupted by work. Violations of employee’s meal break rights can result in significant damages.
California workers generally have a right to take uninterrupted meal periods and uninterrupted rest periods at specific intervals. The worker must not be interrupted with any work-related questions, instructions, or tasks. Furthermore, workers must be allowed to leave the work area during meal breaks.
Workers have a right to a meal break for every five (5) hours worked. If a shift is less than six (6) hours, the employer and the worker can agree in writing that the worker will “waive” (aka skip) the meal period. Similarly, if a shift is less than twelve (12) hours and the worker took the first meal period, the employer and worker can waive the second meal period.
“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.”
By failing to consistently provide uninterrupted and unrestricted meal and rest periods to workers, California employers can face significant penalties pursuant to California Labor Code §§ 226.7 and 512, and §§ 11 and 12 of the applicable Industrial Welfare Commission Wage Order.
Some companies ask employees to remain on duty during their lunch period. This often occurs with a lone security guard.
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 explicitly providing for an on-the-job paid meal period. The written agreement must state that the employee may, in writing, revoke the agreement at any time pursuant to Industrial Welfare Commission Wage Orders 1 -15, Section 11 and Wage 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 may 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.
The Department of Labor Standards Enforcement’s (“DLSE”) Opinion Letter 2009.06.09 concerned Industrial Welfare Commission Wage Order No. 9-2001, subd. 11(C) (Cal. Code Regs., tit. 8, § 11090, subd. 11(C)), which applies to the transportation industry. Subdivision 11(C) contains the same three requirements for any on-duty meal period as other wage orders. In 2013, the Ninth Circuit U.S. Court of Appeals described this opinion letter. The following passage is instructive. The Ninth Circuit explained that the DLSE has found that the “nature of the work” exception applies to two categories: “(1) where the work has some particular, external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer [or at a particular location]. For example, in its most recent opinion letter, DLSE concluded that employees who transport hazardous materials, and are required by federal regulation to attend to their vehicles at all times, are covered by the ‘nature of the work’ exception.” Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 959-960 (9th Cir. 2013) (DLSE Opinion Letter 2009.06.09 at 8).
Workers get a rest break for every three and one-half (3.5) hours worked. The law says every “four hours or major fraction thereof.” Judges have interpreted that to mean employees get one rest break after three and one-half (3.5) hours of work and a second rest break after six (6) hours of work.
The value of a meal break claim or a rest break claim depends on the worker’s hourly rate. Workers are owed one (1) hour of pay at the regular rate of pay for each day when a meal break violation occurs. Workers are also owed one (1) hour of pay at the regular rate of pay for each day when a rest break violation occurs. That means a worker can get two (2) hours of pay for experiencing a meal break and rest break violation, but can only get one (1) hour of pay for experiencing multiple rest period violations in one day or for experiencing multiple meal period violations in one day.
The most important laws are California Labor Code §§ 226.7 and 512 and the Industrial Welfare Commission Wage Orders.
“No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.
If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.”
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