California Meal Breaks - Labor Laws
California Meal Breaks
California labor law requires that employees periodically be allowed to take meal breaks. Specifically, the law requires:
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. California Code of Regulations, Title 8, §11040.
As you can see, the law is fairly protective of an employee's right to take meal breaks and eliminates the illegal practices of having the employee "waive" the meal break or having the employee take the break at the beginning or end of the shift. The law provides the only circumstates where the meal period can be waived by the employee -- when the total work day is only 6 hours, and subject to a written agreement where the job does not permit a meal break.
You should note that there are very few situations were the job does not actually permit a meal break. For instance, if you are a security guard at a remote location, it would not be realistic to stop guarding for 30 minutes while you take a break. In such as a case, if you had a written agreement, you could work through your meal period. On the other hand, if you work in a small store and are the only one watching the store, this would likely not qualify. The reason is that you could simply close the store and take your meal break. It should be noted that most jobs where you work with other people who can cover your shift for 30 minutes will never qualify for the "on duty" meal period.
Another common violation by employers is to have the employee take the break at the beginning or end of the shift. For instance, they have the employee just work 7 1/2 hours and then take their lunch break for 30 mins. Rather than return after the 30 mins, they just have the employee go home. This policy is clearly illegal because the law states that you can not work more than 5 hours without a meal break. Thus, if you work 7 1/2 hours without a break, it does not matter if you could take one before or after you clock out -- it is still illegal. Only bona fide meal breaks that occur at least every 5 hours are allowed under the law.
Extra Pay When You Don't Get A Meal Break
The law requires that "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." California Code of Regulations, Title 8, §11040.
There is sometimes some confusion about this when you work more than 10 hours and are thus entitled to 2 meal breaks. If you don't get either of the meal breaks, you are still only entitled to 1 hours pay. That is, the violation is "per day" rather than per violation.
In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.
Statute of Limitations
The California Supreme Court just made a landmark labor law decision. In Murphy v. Kenneth Cole Productions, Inc., the Court held that payments made for violations of meal breaks are considered "wages" and subject to the 3 year staute of limitations for wages. While the Murphy Court specifically held that Meal Premiums could go back for 3 years, it is very likely that employees will be able to go back a total of 4 years under unfair competetion statutes. For an excellent analysis of the labor law issues involved in Murphy v. Kenneth Cole, please see the link to my blog.
Overtime Issues Caused by Meal Premiums
If you are entitled to overtime under California Law or Federal Law, the meal premium pay would also increase your regular rate of pay for purposes of computing overtime. I have a discussion about how this type of overtime calcuation works onmy overtime website. An important thing to note is the the California Division of Labor Standards Enforcement ("Labor Board") does not use this cacluation in determining your damages. As such, they will not award you all the damages that you could be entitled to. The Labor Board has recently taken a very hostile position towards Meal Premiums and had just recently held that meal premiums could only go back for a period of 1 year. It is fortunate that the courts overturned this erroneous thinking. For information on other problems taking a case to the California Labor Board, please see this article.
What to do
If you feel that your employer is not following the law regarding proper meal breaks for you and/or other employees in the company, you can contact my law office to for a free case evaluation. Please write in the "Additional Information" section that you feel meal breaks are not properly being given.
