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For Employee Rights
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The Lyman Firm | Information & Resources
Information & Resources
Meal and Rest Breaks
THE BOTTOM LINE: The rules around meal and rest breaks can vary in different industries, especially if a collective bargaining agreement is in place. And, it's important to understand that meal and rest break rules generally only apply to non-exempt employees (not independent contractors or exempt employees). With these caveats out of the way, generally, the following rules apply:
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Employees that work more than 3.5 hours are entitled to a 10 minute paid rest break for every 4 hours worked, or substantial fraction thereof.
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Employees that work more than 5 hours are entitled to a 30 minute unpaid meal break. However, the employee and employer can agree to waive this meal break if the shift is less than 6 hours total.
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Employees that work more than 10 hours are entitled to a second 30 minute unpaid meal break. However, the employee and employer can agree to waive this second meal break if their shift is less than 12 hours total.​​
Denied meal and/or rest breaks? You are entitled to up to 2 hours of "premium pay" at your regular rate each shift that a rest and/or meal break violation occurs. ​
THE Law: The default meal are rest break rules are set for in California Labor Code section 512 and Wage Orders created by the California Industrial Welfare Commission. The Labor Code and Wage Orders generally state that:
An employer shall 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 shall 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.
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Cal. Lab. Code, § 512(a).
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Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
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8 C.C.R 11040, § 12(A).
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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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Cal. Lab. Code, §§ 226.7(a), (b).
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is my break compliant? Breaks only count if they are uninterrupted. This means you should be free to do anything you'd like during this time. If your boss requires that you remain "on-call," monitor any work responsibilities, or perform even minor tasks during your break, then it is like not providing you any break at all.
There is a very narrow exception to this "uninterrupted" requirement in situations where the nature of the work prevents the employee from being relieved of all duty (imagine you are the sole night watchmen at a nuclear plant). These "on duty meal periods" are only compliant for these rare situations if the employee agrees in writing.
Lastly, it's important to note that employers are only required to provide the opportunity for employees to take breaks. If employees chose to work through their break, then the employer has still satisfied their obligations. But if employers "provide" a break verbally or in writing only to pressure you to work through it, then the law will still consider this a violation. ​​
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Examples:
1. Joe works at a grocery store. His shift begins at 10:00 a.m. and he works until 6:30 p.m. He is entitled to the following breaks:
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10 minute rest break before 2:00 p.m.
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30 minute meal break before 3:00 p.m. ​​
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10 minute rest break before 6:30 p.m.
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2. Cindy is a server at restaurant. Her shift begins at 5:00 p.m. and she works until 10:30 p.m. She is entitled to the following breaks:
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10 minute rest break before 9:00 p.m.
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30 minute meal break before 10:00 p.m. (unless she signs a waiver, since her shift is less than 6 hours).
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​ 3. Paul works at a large department store. He is working a double shift, which begins at 9:00 a.m. and ends at 8:00 p.m. He is entitled to the following breaks:
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10 minute rest break before 1:00 p.m.
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30 minute meal break before 2:00 p.m.
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10 minute rest break before 5:30 p.m.
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second 30 minute meal period before 7:30 p.m. (unless he signs a waiver, since his shift is less that 12 hours).
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10 minute rest break before 8:00 p.m.
However, assume that during Paul's second meal break and last rest break, his boss decided to do inventory in the back because it was slow and told Paul to take his breaks, but to keep an eye on the sales floor and call over the radio if any costumers needed help. These would not be considered "uninterrupted" breaks, and Paul would be entitled to one hour of premium pay for each violation (two violations total). ​
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This information is meant to provide a brief overview of this legal topic to give employees a general understanding of their rights. Nothing here is legal advice. There are many nuances in the law and even more in how the law applies to a given situation. If you think you are experiencing any unlawful practices at work, and would like legal advice, please contact The Lyman Firm through the link below.
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