California Lunch and Break Law Regulations

July 27th, 2006 Posted by Sarah

In looking over current laws related to meals and breaks on the job, I found that California is one of 19 states regulating meals and breaks for employees.

For all employees working 5 hours or more consecutively, California state law stipulates that a meal period of 30 minutes or more must be provided. This does not apply if the total work per day of the employee is six hours or less and the right to take a meal break is mutually waived by both the worker and the employer. A second meal period of 30 minutes or more is required if the employee works 10 hours or more. This may again be mutually waived if the total working time for the day is less than 12 hours and only if the first meal period was not waived.

This 30 minute meal break may generally be unpaid, but only if the employee is completely relieved of his or her duties. If the worker must do any job duties during the meal break, or even if employees are required to stay on the job site during the break, it must instead be a paid meal break. An exception to this rule is sometimes found in situations where it is not practical for a worker to be completely relieved of his or her duties – for example, in the case of a gas station employee working the night shift alone. An “on-duty” meal period may be unpaid if both the employer and the employee agree to it in writing.

I also found it interesting that California law also mandates paid rest periods for non-exempt workers (typically these are employees paid hourly rather than on salary). For each four hour work period or “significant fraction thereof” (usually considered anything over two hours), a worker must be given a ten minute paid rest period. If an employee works less than three and a half hours in a given day, the rest period is not required. The law also stipulates that rest periods should be taken, as much as is practical, near the middle of that work period.

A thorough presentation of state and federal laws related to lunches and breaks may be found on the California Complete Labor Law Poster. This poster also presents the required notices for all areas of both state and federal labor laws.

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167 Comments >> Posted in California,Employment Laws,Wage and Hour

Posted by: Robert da Silva

I have a question regarding waiving the break period for employees who work 6 or less hours, in the State of California. Does this waiving of the break period by worker and employer need to be documented? If so, is there a form that I can print to ensure that the waiving of a meal break is done so in a legal manner.

Thank you,
Robert da Silva
Posted by: Amelia

Thanks for reading the blog! For a detailed answer to your HR question, please post it at http://www.humanresouceblog.com.

Thanks! Amelia
Posted by: wen

How many days can my employer require that I work without a day off?
Posted by: Amelia

Hi Wen! For a complete answer to this question, please post it on our HR forum at http://www.laborlawtalk.com. And thanks for reading the blog! Amelia
Posted by: tamera

Can an employer give you a verbal warning then write you up if you clock in 2 minutes early from a 30 minute lunch break?

example… lunch is from 10:30-11:00… the clock in was at 10:58
Posted by: Amelia

Hi Tamera! For complete answers to this and al your HR questions, please post them on our sister site at http://www.laborlawtalk.com. And, thanks for reading the blog! Amelia
Posted by: Christina

Is it the Employer allowed to state in the Co. Handbook that employees can work through their lunch hour so long as it is a productive lunch hour? Isn’t it by law that all full time employees working more than 8 hour in a day be required to take at least a 30 minute lunch?
Posted by: Amelia

Hi Christina, California law does allow employees and employers to waive the meal period by mutual agreement. However, if the employee doesn’t want to, they don’t have to. For a more complete answer, please post your question on our sister site at http://www.laborlawtalk.com. And thanks for reading the blog! Amelia
Posted by: Eric

Is the break time part of an eight hour schedule? What I mean: if an employee is at work for eight hours, 30 mins of that time spent on break, does the employee still qualify for a 40 hour week? Thirty mins each day for 5 days = 2.5 hours out of a 40 hour work week.
Posted by: Amelia

HI Eric! This is up to the employer’s discreation. As long as the employee is completely relieved of all work duties, he or she need not be paid for the break. Some employers would schedule an employee for an 8.5 hour shift with a 30 minute break, 5 days per week, for 40 hours. Some employers would schedule the employee for an 8 hour shift with a 30 minute break, 5 days per week, for a 37.5 hour week. That’s entirely up to the employer.

No, the break time is not necessarily counted as work time, unless the employee actually works during part of it. For a more complete discussion of this complex issue, please post it on our sister site at http://www.laborlawtalk.com. And thanks for reading the blogs! ~ Amelia
Posted by: jorge ochoa

What is the law for when you’re scheduled to work and you show up and as soon as you arrive they send you home? I work in car wash.
Posted by: Amelia

Hi Jorge! That’s an excellent question! If you were on the schedule, you may be entitled to a minimum number of hours under California law. Usually, it’s half your usual shift. So if you normally work 8 hours, you would be entitled to 4 hours of pay. For a complete answer, please post your question on our HR forum for employees at http://www.laborlawtalk.com. And thanks for reading the blogs!~ Amelia
Posted by: sylvia

I work from 8-5pm, My breaks & lunch are at 9:30 1st break,my lunch is at 11:30 and 2nd break is at 2:45. I would like to know if my lunch should be after 4 hours of work,which should be at 12:00. I work 8 hours a day,40 hours a week.I would rather go to lunch at 12,not 11:30.That is having breakfast.
Posted by: Amelia

Hi Silvia! Sorry, but you’re not going to get a lot of sympathy on this one. We just answered a question from a Texas employee who is required to work 10 or 11 hours every day, without any meal or rest breaks. Of course, this would be illegal in California.

Many people would be very happy to be in your position. California law requires that an employee who works a shift of 5 hours or more receive a 30 minute meal break. The break must be before the 5th hour of work. However, there is no requirement that it be precisely at the 4th hour. Taking a lunch at 11:30 am or even 11:00 am is very reasonable. We are sorry that your lunch break is not at the precise time you would prefer. You can try posting your question at our sister site at http://www.laborlawtalk.com — maybe they’ll offer more sympathy. HTH, and thanks for reading the blogs!~ Amelia
Posted by: virginia

I know that California law requires that an employee who works a shift of 5 hours of more receive a 30 minute meal break. However, I start work at 6:45, get a break at 7:00 am to 7:30 am , and then forced to go to lunch at 9:00 am. Sometimes I don’t get another break till say maybe 2:00 pm. and I go home at 3:15. Does this sound legal or what? And when I’m on call I don’t go home till sometimes 7:00 pm or later without a second 30 minute break.
Posted by: Amelia

Hi Virginia! California requires that employees be given a paid 10 minute break for each 4 hours worked (or major fraction thereof.) So on an 8-hour shift, you should receive two 10-minute breaks. The law also requires that the break be as close to the middle of the 4-hour period as possible. While there is some flexibility here, taking a break 15 minutes after the shift starts is probably not within acceptable limits. Ideally, you would be taking your first break at 8:45.

California requires that employees be given a 30-minute meal break AFTER 5 hours (unless the shift is completed in 6 hours or less, and the employee agrees to skip the meal break.) And, employees in most industries who work 10 hours or more are entitled to an additional meal break. So your employer is not in compliance with the law regarding meal breaks.

You should probably be going on break at 8:45, to lunch beginning between 11:45 and 12 noon, and on your second break at 1:45, getting off at 3:15. If you continue to work, you should have an additional 30 minute meal break and 10 minute rest break. There is some flexibility in the law, but working 5 1/4 hours without a break is not acceptable.

California law permits an employee to waive their rights to breaks. However, the law also permits employees to withdraw that waiver at any time. Talk to your employer and explain that you need breaks spread out during the day. If your employer is not flexible, contact the California Division of Labor Standards Enforcement about this issue. You can also post your questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lance Farrar

I would like to know who is responsible for setting the time for breaks and meal periods. My employer sets lunch breaks time but expects me to make sure I take my two 10 minute breaks. I live in california
Posted by: Amelia

Hi Lance! It sounds to us like your employer is acting in a responsible and even compassionate way. He tells you what time you need to take your lunch break. But he allows you to determine when you will take your two 10 minute breaks, as long as you take them. That sounds fair to us.

As you know, California has much more restrictive laws than most states regarding breaks. As long as the employer follows these laws, he could determine what time you take your meal and rest breaks.

As an employee, it is up to you to comply with all your boss’s requests (assuming they are legal and reasonable) including taking your two 10 minute breaks. If you are finding it hard to get someone to cover for you during your breaks, you will want to bring that up to your boss. You can also post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: candy

Hello, my schedule is 8:15 am -5:15 pm. I take lunch at 12:00 p.m. -1:00 p.m. Lately, my employer has been denying my morning ten minute break, because I go to lunch within my first four hours. I am then offered a 15 minute paid afternoon break. Is this okay??
Posted by: candy

Also, whatever the answer is, could someone direct me to the legal place where this is written, so I can show them this? Thanks.
Posted by: Amelia

Hi Candy!

No, this is not legal. California requires that employees have a 10-minute paid break for each 4 hour work segment OR MAJOR FRACTION THEREOF, as near the middle of the work segment as possible. So if you start at 8:15, you are working 3.75 hours before your lunch. That is a major fraction of 4 hours and you should have a break at about 10 am.

Under California law, the employer must pay the worker one hour of pay for each day that the rest period (break) was omitted, if the employer fails to give the break. This can go back as long as 3 years, and the California DLSE will enforce it. California courts have ruled that the rest period cannot be added onto the meal break, to make one longer break.

So you would be entitled to a 10-minute break at about 10 am, a meal break of 30 minutes or more before 1:15 pm, and a 10-minute paid break in the middle of the afternoon.

Here is a link to the California Department of Industrial Relations website, that addressed meal breaks and rest periods: http://www.dir.ca.gov/dlse/DLSE-FAQs.htm

You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kathleen Stevens

Message
I understand the California Meal break law of ‘not less than 30 minutes’ if working over 5 hours unless the employee is only working 6 hours. But while working for a Temporary Agency – they have been adament about my clocking out for lunch before the 5 hours or exactly at the 5th hour. Has there been some kind of CA State ruling in the courts that has determined this to be so exact?. I don’t see that the California Employer’s Guide actually states it that specifically. If it has been ruled – would you be able to give me that ruling case number? Thank you
Posted by: Amelia

Hi Kathleen!
The temp agency is correct. According the the California Division of Labor Standards, California Labor Code Section 512 says that, “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 that if the total work period per day of the employee is no more than six hours.”

This would mean that if Julie reported to work at 8 am and went to lunch at 1 pm, her employer would be conforming to the law. If Julie went to lunch at 1:01 pm, her employer would be in violation of the law.

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm. For more information, you can post questions on our sister site at http://www.humanresourceblogs.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Marcus

The company I work for, says it’s against the law if I don’t take my lunch within five hours after I clock in. They’ve threaten to write me up for it. I’ve read the legal code that says employers must provide me with a meal period, not necessarily that they have to make me take it. What if I’m not hungry and I’d rather work?
Posted by: Amelia

Hi Marcus!

Actually, we have to side with your employer on this one.

Under California law, “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 that if the total work period per day of the employee is no more than six hours.”

It is true that the meal period “may be waived by mutual consent of both the employer and employee.” However, there is no requirement that your employer must agree to waive the meal period, if you want to.

In order for a California employer to prove that the waived meal period was voluntary, they would need your signed permission to waive meal periods. It would be better to have it notarized. And that is just too much trouble for most employers to go to, unless you permanently want to waive all meal periods.

California has some of the strictest employment laws in the nation, and some of the strictest enforcement. If the employer fails to give you a meal period within 5 hours, the employer must pay you one adidtional hour’s wages, over and above what you earned that day. Few, if any, employers are willing to take that risk.

There is no requirement that you eat on your meal period. But if you don’t take it, your employer is breaking the law…and few employers are willing to be put in that position. The employer can legitimately discipline or even terminate you if you refuse to take the required breaks.

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
HTH, and thanks for reading the blogs!~ Amelia
Posted by: saulmendoza

Hi! My name is Saul and I drive from house to house and my employeer wants us to clock out for lunch as soon as we get into our truck but must clock back in to work within the hour and be at the customers house. What about drive time? Is that going back to work before the hour is over?
Posted by: Amelia

Hi Saul! Yes, if you must drive during your meal break to reach the next customer’s house on time, that isn’t really a break, is it? The employer must pay you for the driving time. If your meal break is not 30 minutes or more, then under California law, the employer must pay you an extra hours wages each day that you do not receive your full break. This law is enforced by the California Division of Labor Standards Enforcement. HTH, and thanks for reading the blogs!~ Amelia
Posted by: David

Hi If I’m covered under a union contract and it states that lunch should be before the 5th hour, and our employer lunches after being on the clock for 3 hours is that legal, or does state law suppercied the contract.
Posted by: Amelia

Hi David! As far as we could determine, California law does not provide for an exception under union contracts. However, it’s irrelevant anyway, since it appears that this California employers is in compliance with both state law and the union contract. Apparently under the union contract, the meal period should be before the 5th hour. That means if John reports to work at 8 am, he must be given a meal break sometime before 1 pm. If the employer requires John to take a meal break at 11 am, the employer is abiding by the union contract and California law.
The way the California law is worded is a little confusing. The California law does not say that an employee is entitled to a break AFTER 5 hours. It says that the law applies to employees on a shift of 5 hours or more. In other words, the law applies to employees who work 5 hours or 6 hours or 7 hours or 8 hours, etc. California actually does not mandate the timing on meal breaks — although some other states do. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Joseph

What I keep seeing is how long or when a meal break must be taken. What are the rules if you split your work day by taking an extended meal break; for example what if I needed to take a 3 – 4 hour meal break in order to do some personal business and then returned to complete my shift within the same work day?
Posted by: Amelia

Hi Joseph! There is no law that requires a California employer to give an employee a meal break longer than 30 minutes. This is true, even if the employee requests the longer break to take care of personal business. Nor is there a law that the employee must be permitted to return to work to complete the shift later the same day.
Most California employers would discipline or even terminate an employee who took such an extended break.
If the employer agrees to such a break, the non-exempt employee need only be paid for the time that he or she actually works.
In some circumstances, the employee may be entitled to unpaid leave under FMLA or one of California’s family leave laws. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Cindy

Hi I had a question,

I work for a hosptial in L.A and I’m required to take a 30 minute break regardless only working 6 hours. Is that legal? I work 7-1:00.
Posted by: Amelia

Hi Cindy! Yes. There is no California law that employees working such a short shift are automatically entitled to a break. However, the employer can set stricter break policies than the law requires, if they like. In this case, the employer can require that you take a break, and can discipline or terminate you if you do not. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kathleen

Message
California law regarding meal breaks is confusing as to how it reads, but cases have been taken to CA court and judges have ruled/and upheld the exactly 5 hour time frame. The Labor law also states that if a person does not take/or is given their 30 minute meal period at the five hour mark, they are to be paid an additional hour at straight time.
Posted by: Amelia

Hi Kathleen! Thanks for your input! We agree 100%! Excellent point!~ Amelia
Posted by: Lizel

I work 9 – 6 PM every day 40 hours a week. My employer gives us one hour lunch every day. I have lunch at 1:00 – 2:00 PM but I do not take any ten minute breaks. Is my employer including my breaks and adding it to my lunch? Can they do that?
~Lizel
Posted by: Amelia

Hi Lizel! No, under the California rest break law, the 10-minute breaks cannot be combined with the meal break. They must occur in the middle of each 40hour work segment. So you should have a 10-minute paid break at about 11 am and another at about 4 pm. HTH, and thanks for reading the blogs!~ Amelia
Read more about this at: http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm
Posted by: Heather

I worked from 4:00p.m. to 9:00p.m. and my manager told me I had to take a break. I understand that I had to take a break because my resturant was holding a meeting that started at 9 and ended at 11p.m. That meens I would have worked 7 hours. My question is, when I went on my break I was forced to go to the meeting and when I questioned this he threatened to write me up??? I didnt think it was right for everyone else to get paid for a 2 hour meeting and I was only paid for an 11/2 meeting…What should I do? Is this right?
Posted by: Amelia

Hi Heather! You are correct. Employers must pay workers for any mandatory meetings. A meal break can be unpaid in California, but only if the employee is a) free of all work duties and b) able to leave the premises. Neither applied in this situation. Under California law, when an employee does not receive his or her meal break, the employee is entitled to an extra hour of pay that day. If you have not discussed this with your manager, you should do so — once, and very politely. Just point out that you believe this was unfair. If the manager does not respond by paying you for your “break” plus an additional hour of work that day, contact the company HR department (if they have one.) If they do not have one, file a wage claim with the California Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/dlseWagesAndHours.html. It amazes me, but many California employers are unaware of the labor laws in their state. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
Posted by: David

Hi Amelia, I have a question about (This 30 minute meal break may generally be unpaid, but only if the employee is completely relieved of his or her duties. If the worker must do any job duties during the meal break, or even if employees are required to stay on the job site during the break, it must instead be a paid meal break.) What if we are lunched in a different city then where we started and don’t have access to our car, and the closest gas station is a 13 minute walk down the road for a soda or some food. We are able to leave the yard just not in a vehicle, since we clock out we can’t drive the company vehicle. But we are relieved of all duites. Thanks, Dave
Posted by: Amelia

Hi David! There is no requirement under the California meal break law that the employee have access to a vehicle during the unpaid meal break. Theoretically, employees could bring their lunch from home. As long as the employee is completely free of all duties, and free to leave the premises if he or she desires, the meal break need not be paid. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Marcus

Hi, another question. The management seems content on paying the employee the extra hour’s wages for violating the five hour lunch rule and not writing them up. However, isn’t that still breaking California law?
Posted by: Amelia

Hi Marcus! We’re a little confused. In your first question, we thought the employee did not want to take a break. Now, it sounds like it is the employer’s choice. Which is it? Thanks, Amelia
Posted by: Marcus

Different case.

These are employees that have to help customers on key sales days. The management seems not to be concerned with the employee’s five hour lunch and are perfectly content with paying them the extra hour’s wage. But still, isn’t not letting them take a lunch against California law, even if they pay the extra hour’s wage…or does that absolve the management from liability for breaking the five hour rule?
Posted by: Amelia

Hi Marcus! This is an interesting situation, and we would like to see the DLSE — the California Department of Labor Standards Enforcement — rule on it.
But we are going to have to go with the second answer. Under California law, an employer must give workers a meal break within 5 hours. The penalty for not doing so is paying the employee for an extra hour, above and beyond what the employee worked. In this case, the employer is so busy that they are willing to have the employee work 8 hours and be paid for 9 hour on peak days. Because the employer is paying the penalty, it seems there are no additional consequences. In fact, the FAQs on the topic are clear that the employee can file a complaint…only if they were not paid the additional hour. HTH, and thanks for reading the blogs!~ Amelia

Read more at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
Posted by: Kathleen

Message
Hi Amelia – it has been a while for me since working in HR – CA – our mechanics work on airplanes and our work week is from Sunday thru Saturday. Are Sunday hours double time – if the mechanic worked a full 5 – 8 hour days the rest of the week? I’m having trouble finding my answer in the Calif. Employer’s Guide.

Thank you
Posted by: Michele

Hi Amelia,

We have non-exempt employees who attended an in-house training during their lunch break, food provided. Do we need to pay the employees for this hour? Please advise.
Posted by: Amelia

Hi Michele! Yes, you need to pay non-exempt employees for mandatory meetings, even if lunch is provided at the meeting. Under the California law, breaks may be unpaid only if the employee is a) relieved of all duties and b) able to leave the premises. Neither of those applies in this case.
Also be aware that you may be in violation of the state break law. A meeting where food is served, does not satisfy the California requirement for a meal break. It is not a break, because the employee is working. Under California law, you would be required to either a) provide these employees with an additional break period within the required time or b) pay the employees each for one hour more than they work during the day.
Our recommendation would be that you discontinue the lunch-time meetings. Schedule regular lunch breaks, and hold the meeting at another time. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Heidi

As anl employee in california do I have the right to file a wage claim for my employer not providing a meal period for shifts lasting six hours when I did not sign a waiver for these breaks?
Posted by: Amelia

Hi Heidi! Yes, you have the right to file a wage claim for this. California has the strictest break law of any state. Under that statute, employes are entitled to a 30-minute meal break after 5 hours. If the employer does not comply, the employee is entitled to payment for an extra hour, over and above the time the employee worked that day. If the workday will be completed in 6 hours or less, and there is a mutual agreement in place — in writing — to waive meal breaks, then the break may be skipped. HTH, and thanks for reading the blogs!~ Amelia
Posted by: heidi

Amelia,
All employees were told by our store director that 6 hour shifts did not get a lunch break when I inquired further to this statement I was told that the break penalty did not apply to them because federal law supercedes california law and they were not subject to those laws can you please clarify that this is not the case as this affects the rights of nearly 100 current employees and countless past employees who I believe have been lied to for years regarding this issue. Thanks in advance for your help.
Posted by: heidi

Wow isn’t this amazing in my efforts to resesarch this further I called dlse in refference to the questions I posted here they informed me they have no jurisdiction over federal city county or state offices. That california laws are not applicable to these entities and that the only recourse I have is to go to the union or get an attorney and sue them. So for three years they have been working employees without breaks on 6 hour shifts and they don’t have to pay break penalties you would think that the people that govern the rules would have to abide by them as well. Just not right
Posted by: Amelia

Hi heidi! Sorry, the DLSE is right and we were wrong. Your best bet would be to take this up with the union during the next round of contract negotiations. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Alex

I have a question. I work night audit meaning I go in at 11pm and work till 7am. Now being in the hotel field I am not able to completely leave my work station. I have to always be on shift in the event of an emergency or guest needing something. I am scheduled 8 hours I know I have plenty of down time where I am not really helping people. Do these count as 10 minute breaks and Lunch even though I am still clocked in and working if I am needed.

Thanks
Alex
Posted by: Amelia

Hi Alex! The working conditions you describe are standard in the hotel industry — but may not be entirely legal in California. Our suggestion is that you speak with the California DLSE — the Department of Labor Standards Enforcement — before taking any action. They have the final answer for you.
Regarding meal breaks, the California statute says that an “on-duty meal period counted as time worked and permitted only when the nature of the work prevents relief from all duties and there is a written agreement between parties. Employee may revoke the agreement at any time.” This applies to your circumstances because (assuming you are working alone) the nature of the work prevents you from being relieved from all duties. If a guest comes to the front desk while you are “on break” you must respond. You could “revoke” your agreement, and inform the employer that you must be relieved of all duties for your meal period. Obviously, it would not be cost-effective for the employer to hire a second person for the 11 pm to 7 am shift, just to cover your break. So the employer would probably take you off that shift, put you on a different one, and hire someone who is willing to agree to a working break for the night audit. (The employer might or might not have daytime hours to give you. There is no law that they must give you the same number of hours that you are working now.) So you might end up working 16 hours per week on the 7 am to 3 pm shift, rather than 40 hours per week on the 11 pm to 7 am shift. But you would have a 30-minute unpaid meal break each day where you were entirely free of work duties. So there are pluses and minuses to bringing this issue up. The choice is yours.
Rest breaks are more problematic. So far as we can tell, there is no exception under California law for an employee who is working alone. The employee is still entitled to a 10-minute rest break in the middle of each 4-hour shift. Many hotels have a security guard who can stand behind the front desk for 10 minutes during the night auditor’s break. If yours does not, you would be justified in setting a timer for 10 minutes and not answering the phone or responding to customers during that time. Again, speak with the DLSE before you take this action.
The bottom line is…do you really want to force this issue at this time? Millions of people are out of work. It is especially difficult to find jobs in the hospitality industry, which is suffering as much as it did after 9/11. There is no chance that your employer is going to hire a second person to cover your breaks. Only you can decide if this issue is worth pursuing or not. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Caitlin

Hi Alex! I mostly agree with what Amelia said. I have one more question for you: What do you hope to get out of this situation? Because the answer to that will determine what action, if any, you should take.
I agree with Amelia that the employer is unlikely to hire a second person on the shift so you can take breaks. It is possible that you could file a claim and be paid an additional hour each night — so work 8 hours and be paid for 9 hours. Theoretically the employer cannot retaliate against you for filing the wage complaint.
With any employment question, I think it’s important that we ask ourselves: What do you hope to get out of this situation? What is your goal? Before taking action. Cheers! ~ Caitlin
Posted by: Elise

I am an hourly employee who has been working at a nightclub box office for nearly four years. During that time, the company was never strict about breaks, and actually never really encouraged them at all. I have in the past work worked as many as 10-13 hours consecutively without even taking a break at all.

With the economic downturn the company has been cutting back on labor costs as much as possible, cutting hours and so forth. Recently (within the last month or so) they started enforcing mandatory 30 minute break periods for any employees who work more than 6 hours. We are short-handed in the box office, so these breaks can cause problems but we work around them. A couple of weeks ago, I clocked in at 1pm and at 8pm my boss informed me that I would be clocking out at that time for one hour, until 9pm (to take a “lunch break”) and then clocking back in from 9pm to 10pm. Everyone else at the company takes a 30 minute break only. Is this legal?

Also, I am now being scheduled from 1 to 10pm, with the expectation that I will clock out at some point for 1 hour. I know that this is so that they can keep me in the box office an extra half hour longer, but not have to pay me overtime, since I clock out for 1 hour, and am technically only paid for 8 hours. I don’t like this arrangement at all, especially since all other employees (who come in later and so can stay until the box office closes without going over 8 hours) are only required to take a 30 minute break and can go home after having been at the club for only 8 1/2 hours, rather than having to stay for 9 hours like I do. Is it legal for them to alter the break policy regarding only me, just because I come in earlier in the day, when we all still work 8 hours?
Posted by: Amelia

Hi Elise! Yes, this is legal. The only illegal part of your post is the fact that you were not given meal breaks for the past few years. Under the law, when an employee is not give a meal break, in California the employer must pay the worker for an extra hour of work. File a wage complaint with the DLSE or Department of Labor Standards Enforcement.
The employer can require that any employee take a break, and can require that all box office employees who come in at 1 pm and leave at 10 pm take a one-hour break. If you are the only employee working that schedule, the break only applies to you. HTH, and thanks for reading the blogs!~Amelia
Posted by: Kathleen

Message Amelia – in regards to your answer to Elise – you forgot to mention the 5 hour rule on taking a lunch break. It must be before or exactly on the 5th hour unless she is only working a 6 hour day. If she comes in at 1 and is asked to take a break at 8 this is over the 5th hour and is also not legal according to the CA Employers Guide.
Posted by: Amelia

Hi Kathleen! Thanks for catching that! You are so right! So Elise, the employer can require that you take a 60-minute lunch break, but if you start work at 1 pm the break must begin by 6 pm. HTH, and thanks for reading the blogs!~ Amelia
Posted by: ramel

hi i work for a production plant here in california i work 12 hour shifts with out any lunch breaks or breaks i was wondering if this illegal.
Posted by: Amelia

Hi ramel! Yes, this is illegal in California. Contact the state Department of Labor Standards Enforcement, or DLSE. Under state law, the employer has to pay you for an extra hour of work each day that you miss your breaks. If you missed breaks for 40 work days, that’s 40 extra hours of pay. You can file a wage claim with the state for this amount. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Sandy

Hi Amelia,
Loved your words of wisdom and legality above. My situation: I work for a non-profit 501(c)3 church. I am a part-time 20 hr a week office employee. They were kind enough to work with me on hours and days since I got another part-time job but have had to re-do my hours from 9-2 working 4 days a week to 9-3:30 on 3 days. Board realized right away I have to take a lunch. Do I really have to? Can we do what is suggested above and write a doc that states I do not want to take lunch and they agree it is ok? We have a giftshop that would have to be closed while I am at lunch. I am the only one here at the office, I correspond with the board by email so I am alone here all day usually, no-one to break me. I eat at my desk while working so I really don’t want to stay another half hour if I don’t have to. I am petty sure the board will not mind if it is legal. Can I do this?
Thank You,
Sandy
Posted by: Amelia

Hi Sandy! Unfortunately, this would not be lawful. Under California law, an employee can waive a meal break if the total shift is 6 hours or less. You are working a shift of 6.5 hours. You can, however, agree with your employer to take an “on duty” meal period, for which you are paid. This would mean eating at your desk while on the clock. More details are below.
Under state law, you must still take a 10-minute paid rest break for each 4-hour segment, “or major portion thereof.” HTH, and thanks for the kind words!~ Amelia

read more about this at: http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Posted by: Neil

Hi Amella,
I have a question regarding federal law on unpaid lunch breaks- I am required to wear a radio all day long and can be called at any time(to take care of any problems that may arise with my associates),there has been many times that I have had to stop eating-take care of a situation and then return to a cold lunch. Is this legal? It just doesn’t seem right to me. And if it is illegal-is there a way that I could be compensated for the last 3 years of lost pay on deducted time for lunches that actually weren’t legally deducted?
Thank you for any information you can provide.
Posted by: Amelia

Hi Neil! California law is more relevant to this situation than federal law. Under California law, the employee must be relieved of all duties during their designated meal break. (Unless the employee has voluntarily signed an agreement giving up this right, and it appears that you have not.) If you are not relieved of all duties, you are entitled to payment for an additional hour per day (plus the time that you actually worked.) By all means, file a wage complaint with the California DLSE or Division of Labor Standards Enforcement ASAP! You should claim the 1.5 hours for each day worked — the 30-minute break plus the extra hour. This answer would be different in other states. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Posted by: Neil

Amelia,
Thank you for the quick response,I was cocerned with the federal law because I am employed in Missouri(there is no state law that I am aware of that applies).
Any advise?
Thank you
Posted by: Amelia

Hi again, Neil! Darn. You are correct that Missouri has no state law that requires employers to give workers meal or rest breaks. There is also no federal law that requires employers to give breaks to workers in most industries. Under the federal FLSA or Fair Labor Standards Act, an employee is entitled to payment for any breaks that are shorter than 20 minutes.
Whether or not you are entitled to payment for your lunch breaks will depend partly upon how frequently you are interrupted. When you go on meal break, if you are radioed by an employee and must return to work or solve a problem, then you are entitled to payment for that entire meal break. However, you would not be entitled to payment for any meal break that was uninterrupted — even if you were carrying the radio during your break. In some sense, any employee on break is always subject to recall.
Under federal law, the courts have sometimes made an exception when an employee is routinely called back to work. For example, if a store manager is interrupted during his or her meal period 80% of the time, then the courts have sometimes found that the employee is not actually relieved of duties during the meal breaks, and is entitled to payment for all meal periods. However, simply carrying the radio doesn’t mean you are working — only receiving radio calls that require a response constitute working.
In order to be paid for past breaks, you would have to be able to document which ones were interrupted. For the future, your best bet is to keep written records of any meal breaks that are interrupted. Once you have several of them, you can contact the US Department of Labor and file a wage complaint. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Harry

If employee have not signed a waiver yet and they work 8 hour or 8.30 hour by schedule do they get paid .30 minute OT or one Full hour OT and employer don’t have to pay you OT for break because it was schedule for 8 hour no break and when it did schedule for break you don’t get the break how much OT they supposed to get.
Posted by: Amelia

Hi Harry! If we understand your question correctly, it’s: An employee works 8.5 hours with no break. Are they entitled to overtime because they missed the break?” The answer is “no.”
Under California law, when an employee works more than 8 hours, the employee is entitled to overtime. So if the employee works 8.5 hours, he or she must be paid 8 hours straight time plus .5 hour overtime for the hours actually worked.
If the employer fails to provide the employee with a meal period, the employee is entitled to an additional hour’s pay at the employee’s regular rate (not overtime.) So the employee would be entitled to an additional hour of pay, meaning the employee gets 9 hours straight time plus 0.5 hour of overtime.
There is no law that any employee must sign a form to waive their meal breaks in California. It is entirely voluntary, and the employee can withdraw their permission at any time. However, in some cases the nature of employment permits an on-duty paid meal break. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Posted by: Marcus

I have an unrelated question, but the site as been most informative on legal matters in the work place.

Here’s the situation.

One coworker complained to me that a guy in security called a girl he was casually talking to and told her not to talk to him (not at the time, but he’d talk to her in the course of his work day).

Then, a few days ago, the very same guy in security told me that one of my employees(female and is friends with the said security guy) was talking to a few friends; since that was the first time the guy in security every said anything like that to me, I thought it was serious. I walk over to her dept. and found her talking to another male coworker whom I’ve seen her having lunch with previously etc. so it’s no big deal*.

I have a pretty good idea what’s going on. I suspect he’s using his position to jocky himself for purposes of dating.

Do I have a possible sexual harassment/HR issue here?

Thank you.

*for those wondering, my policy is that if you can walk and chew bubble gum at the same time, you can talk while you work. If you can’t, then you can’t.
Posted by: Amelia

Hi Marcus! You sound like a responsible employer and you are right to be concerned. Yes, this is a very serious HR issue.
We agree with your assessment. This security guard is abusing his power to limit this young woman’s social circle. And frankly, what he is doing is sinister. This type of very controlling behavior would be a concern if the woman and the security guard were married or in a relationship. It often escalates into domestic abuse or violence.
It is even more scary when the target is a young woman who is not romantically involved with the security guard. The security guard is not acting like a normal, reasonable person. Without over-reacting, you should be aware that homicide is the 4th leading cause of death in the workplace. Therefore, you should take actions to limit your liability and to nip this problem in the bud.
First, have an open, casual, conversation with the young woman behind closed doors. Ask her how things are going, if she has had any problems with coworkers, if anyone is bothering her. If she complains that the guys in the office won’t leave her alone, that may very well be a sexual harassment problem, and you would need to tell them to cool it.
However, it is far more likely that she will say everything is fine, she likes her coworkers and gets along with them.
In that case, at the very least the security guard is abusing his power, and at the most he is showing warning signs of workplace violence. According to OSHA, excessive interest in a potential (not actual) romantic partner and controlling behavior are major signs of potential workplace violence. If you are the security guard’s employer, he should be terminated for this abuse of power. If not, you need to bring this completely inappropriate behavior to the attention of his employer and have him fired (preferably) or assigned to a location where he has no contact with this young woman or her coworkers.
You should probably inform the young woman of the security guard’s actions, so that she can be wary of him. If his attentions are unwanted, then as an employer you have the responsibility to protect her from the sexual harassment at work — even if the security guard is not your employee. In that case, you would have to make it clear in no uncertain terms that the guard needs to be reassigned.
We never thought we’d say this, but the multi-million-dollar liablility of sexual harassment is the least of your problems in this situation. Workplace violence is the greater concern. HTH, and feel free to ask any additional questions that you may have! Amelia

Read more about preventing workplace violence at: http://www.osha.gov/SLTC/workplaceviolence/
Posted by: Kayla

Lets say this.
An employee is scheduled from 12:30-8:30
They are not given their meal break until 6:00 which violates five hour laws and that employee never got a 10 minute break on a 7.5 hour shift.
How can this be contested?
Posted by: Amelia

Hi Kayla! This employer is in violation of the California meal and break laws. Under California law, if the employee is not given all of his or her 10-minute breaks during the day (and this employee was entitled to 2) then the employer must pay the worker for an additional hour of work. This additional hour is at straight time — it is not figured in calculating overtime.
Also under California law, when an employee is scheduled for a shift of 5 hours or more, he or she must be given a 30-minute meal period (unless the shift is 6 hours or less total.) In this case, the meal break was given but it was after 5.5 hours. (Note that this would be lawful in some industries, including motion pictures.) Again, when the employer fails to meet this standard, the employee is entitled to an additional hour of pay at straight time.
So in this case, the employee should have been paid 7.5 hours that she worked, plus 1 hour for missed breaks plus 1 hour for a late lunch period. The employee is entitled to 9.5 hours of pay for the day — but all at straight time, no overtime involved.
If the employer does not pay the employee for all 9.5 hours, the employee can file a wage claim with the California DLSE, or Division of Labor Standards Enforcement. Usually the employee must file the claim within 3 years for it to be valid. HTH, and thanks for reading the blogs!~ Amelia

read more about this at: http://www.dir.ca.gov/dlse/faq_restperiods.htm and http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Posted by: Marcus

Kayla’s question reminds me of my first job.

Back in ’94, I was 18 and still in High School. I got a job at a local supermarket. I don’t remember if I ever took a lunch. I would work weekends 2pm-10:15 or 10:30pm and two week days, 3pm to 10:15pm or 10:30pm. I do remember eating lunches, as I wouldn’t let a job get in they way of my hunger, but, I don’t remember taking 30 minute lunches in which I left the store. I think I took a lunch during my 10 minute breaks.

Maybe if I find some old pays stubs will solve the riddle.
Posted by: Amelia

Hi Marcus! It’s probably pointless for you to look for your pay stubs. The statute of limitations on payroll matters is usually 3 years. Both federal and state laws require that employers keep payroll records for 3 years, and can go back that far to correct errors.
At this point, even if you were working for $1 per hour, 23 hours per day with no breaks or overtime in 1994, there is no recourse under the law.
However, that doesn’t make what Kayla’s employer is doing now lawful. She is still entitled to her break, or to an extra hour’s pay. HTH, and thanks for reading the blogs!~Amelia
Posted by: Julie Jusino

Message

If an employee works 15 hours in one day in California Is she entitled to 8 hrs at regular pay and 7 hours at double time pay.

Thank you.
Posted by: Amelia

Hi Julie! No. The California employee who works 15 hours in one day is entitled to 8 hours of straight time, 4 hours of overtime at 1.5 times the employees average rate, and 3 hours at double time. California law requires overtime for more than 8 hours per day, and double time begins when the employee works more than 12 hours per day.
If the employee has already put in more than 40 hours in the payroll week, or this is the 7th consecutive day of work, then different rules apply. HTH, and thanks for reading the blogs!~ Amelia
Posted by: michael

hello i have a question on the labor laws…my work decided that we need to take a lunch now..but i drive a truck….so what are the rules on drivers…do they got to pay for the lunch because im not in my home station..i work about 10 hours a day…my employer pays for driver that stay over nite …they work the same amount of hours…they just dont come home tell there 10 hours off..thank you for ur time..michael
Posted by: Amelia

Hi michael! There is no law that an employer has to buy lunch for truck drivers. If you were required to remain on company premises for your lunch break, it would have to be paid. However, it appears that you are permitted to leave the premises (in fact, required to leave the premises) and are completely relieved of all duty during the break. So the meal break is unpaid. Except in the motion picture industry, California never requires that an employer provide food for the employee unless the employee is traveling overnight. Our suggestion is that you buy a small cooler and pack your lunch, if you don’t want to purchase it.
In this case, the employer will argue that your truck IS your home work station.
Here’s the good news: it sounds like your employer only recently decided that you need to take a lunch break. Under California law, any employee who is not given a 30-minute lunch break on a shift of 5 hours or more is entitled to an additional hour of pay each day. If you were not receiving your meal breaks in the past, you should file a wage claim for one hour per day worked. Wage claims can go back 3 years. File the wage claim with the California Department of Labor Standards Enforcement (DLSE). HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Posted by: Luke

I’m trying to find out if an employer in California has to provide a break room. And is it legal for your employer to force you to leave the building for your lunch period. I work 10-12 hrs/day and on some days we only receive a 30 min. break.
Posted by: Amelia

Hi Luke! Sorry, but this sounds completely lawful. When a California employer requires that employees remain on the premises for their meal break, it must be a paid break and the employer must provide a break room. However, when an employee is permitted to leave the premises for meal breaks, the employer is under no obligation to provide a break room.
You say that the employer forces you to leave for your meal break. We think it is more likely that they simply do not provide a break room, and you choose to leave. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Fred

I live in Los Angeles, California and I work part time at a fashion store. A lot of times I am scheduled for a 4 hour shift, but I often get sent home after 3 hours, is this legal? I also have a 2nd question that is relevant to this. Is it legal to be scheduled for a shift that is under 4 hours? Thanks.
Posted by: Amelia

Hi Fred! California is one of the few states that require an employer to pay workers in some cases when they are sent home early. However, that law regarding “reporting time pay” does not apply to you. When a California employee is sent home after working less than 50% of the scheduled shift, the employee is entitled to payment for half of the scheduled shift. Example: Tina is scheduled for 8 hours on Tuesday. Before she clocks in, her employer tells her that there is no work for her. Tina is entitled to payment for half the shift, or 4 hours. If Tina had worked 1 hour before being sent home, she would be entitled to payment for 3 additonal hours, being paid for 4 hours total.
If you reported to work a 4-hour scheduled shift and after 10 minutes the employer sent you home, you would be entitled to payment for 2 hours. That’s 50% of the scheduled shift. However, since you are working more than 2 hours, you are entitled to payment only for the time you work.
There is no California law that would prevent an employer from scheduling an employee for a shift of less than 4 hours. There are no limits on the length of a shift. An employer could schedule an employee for 20 minutes per day, if the employer liked. HTH, and thanks for reading the blogs!~ Amelia
Posted by: chris

I work in a restaurant. I work about 7 hours every day. They require me to take my 30 min. break after 1 hour of being there. Because it’s so close to my in time I’m not hungry and need to take a 10 min. break, (if I can get someone to cover me), to eat later. Otherwise I would go from 11am-4pm minimum without eating. Too long for me especially now since I’m pregnant. Problem for me is it is hard to eat in 10 minutes and we have to wear a jacket so our uniform isn’t visible but we don’t have lockers or anything. I don’t understand why break rooms are not required either.
Posted by: Amelia

Hi chris! This meal arrangement is inconvenient, but it is lawful in California. Most people go 5 hours or more between lunch and dinner. The real problem here is that you must eat more frequently, because you are pregnant. Our suggestion is that you choose a snack that you can eat quickly during your 10-minute break. You might also consider not eating before you come to work, so you are hungry at your break time. HTH, and thanks for reading the blogs!~ Amelia
Posted by: rosa

Hi I just started a dental practice in California. What is the rule for breaks for a 8 hour day shift? since we are in the health field and sometimes there is only one person in the front office while I am with a patient in the operatory. I understand there is a 1 hour lunch unpaid, but what about the 10 min breaks? Thanks
Posted by: Amelia

Hi Dr. Rosa! California law requires that employees be given a 10-minute rest period away from the work station, in the middle of each work segment that is 4 hours, or the major portion thereof. That would mean that your front office person is entitled to a 10-minute paid morning and afternoon break, on a shift of 8 hours. If the employee does not receive all her breaks, you must pay her for an additional hour per day. She can file a wage claim with the state of California and they will enforce this payment.

Our suggestion is that your front office employee take the 10-minute breaks anyway, even though there is no one to relieve her. She can put up a sign that says “On break — Receptionist will return in 10 minutes” so that patients will know. You can let any phone calls during this period go to an answering machine or answering service, or voice mail. The other option would be for you to relieve the receptionist at the front desk, and let any waiting patients know that you will be with them right after her break.

As your office becomes busier, the dental assistant or oral hygenist can relieve the receptionist for breaks.

By the the way, although you can certainly provide a 1-hour unpaid lunch, the legal requirement is for a 30-minute unpaid lunch. However, the longer lunch does not compensate for skipping breaks.

Kudos to you for being concerned about HR policies in your practice! We get more complaints from employees at medical practices than any other type of workplace. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/DLSE-FAQs.htm
Posted by: Danielle

I work in a dispatch center and work 1300-2130; 5 days a week. They’re very on top of getting us to lunch of our 5th hour, however they like to send me to my last break before 1930, giving me two hours before I can leave. I understand this maybe legal, but it’s very uncomfortable for me personally to go this early. My question is- do I have the right to tell them I will not go at that time and will instead go at a later time during my shift? Am I legally allowed to say no to my break and request it be scheduled at a later time so long as it is within a legal time frame? Also could you site this for me to show my supervisor?
Posted by: Amelia

Hi Danielle! Sorry, but the answer is “no” on both counts. California law states that the employee must be given a paid 10-minute break on each 4 hour work segment, “as near to the middle of the 4- hour work segment as practical.” In other words, by law you must be given the break this early, and if the employer delays it, they may be in violation of the law.
Also be aware that it is the employer, not the employee, who dictates when an employee will take breaks. Refusing to take a break at the designated time is legitimate cause for discipline or termination.
You can tactfully ask your employer if it is possible to take the break a few minutes later, but they are under no obligation to grant that request.
You say tht it is “uncomfortable” for you to take your break at this time. If you are physcially in paid because you have a diability, then the employer may be required to grant additional breaks as a reasonable accommodation for that disability. HTH, and thanks for reading the blogs!~ Amelia
Posted by: chris

I work in a restaurant in California. One of my managers said if someone “walks out” or shorts us we can be written up or we have pay for it. Is that true? How do we have control over that really?

Also, if our shifts are 6 1/2 – 7 hrs. long do we get one or two 10 minute breaks? what can I do if they act really inconvienced to give me a 10 min. break and tell me I have to figure out coverage. I’m the only one who takes them apparently (important to me since I’m pregnant) and one mgr even said “I don’t know how they work it out with you” like it’s so wierd. Sometimes no one wants to break me since it’s tip based. Seems to me their job includes dealing with breaks.
Posted by: Amelia

Hi chris! The answer to the first question is fairly simple. Employees are often penalized for situations beyond their control. Your car might break down on the way to work, or the freeway may be shut down due to a mud slide, making you late. The employer can discipline or terminate you for being late.

By the same token, the employer can discipline or terminate an employee who has a table that walks out without paying. The assumption is that if the server were more attentive, the customer would not have the opportunity to slip out without paying. The employer cannot legally require that you pay the tab under these circumstances, but they can terminate you. An employee who was terminated for this reason would be eligible to collect unemployment and might have a case for wrongful termination in California.

On the other hand, you are entirely correct about breaks. California law requires a 10-minute break at the mid-point of each 4-hour work segment for all employees. You are right that this should be routine in the workplace. Here is how you can remedy this problem: Skip one break for one or two days. Under California law, when an employee does not receive one or more breaks, the employer is responsible for paying the employee for an additional hour of work, at his or her average rate. (The average rate includes tips, so if you average $15 per hour with tips, the employer would have to pay you an extra $15 because you worked through a 10-minute break.) Once this has occurred for two days, file a wage complaint for two hours’ pay with the California DLSE or Department of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm.

You might also let your coworkers know that they are entitled to an extra hour’s pay for each day they have worked without two breaks for the past 2 years.

Don’t threaten to do this. Don’t tell the employer if you don’t get your breaks, you are going to do this. Just do it. We guarantee that if the employer has to pay that extra hour of wages, even once for one employee, they will magically make it their business to give every employee two breaks on each shift. You are right that this is a fairly simple procedure. You watch Cindy’s tables when she is on break, and she watches yours. Both of you choose break times when the food order has been delivered, so it’s a matter of refilling beverages. Both of you keep the tips from your own tables. It evens out in the end.

We realize that skipping your breaks permanently is not the goal you have in mind. But trust us, once the employer has to pay for an extra hour of labor, they will make certain that every employee takes breaks on every shift.

Meanwhile, because you are pregnant, we will point out that worker safety regulations require that employees be permitted to use the restroom when nature calls. HTH, and thanks for reading the blogs!~ Amelia
Posted by: daphne

i understands that the california law stated that employees are entitled to a minimum of 30 minutes meal break for every 5 hours and a 10 minutes break for every 4 hours.

My work hours is 11am-6pm, and my employer told me that i can’t have lunch at 12:15pm, because the law doesn’t allow me to have lunch an hour after coming in to work. Is that true? Is it by law that the meal break is supposed to be after completion of the 5 hours of work?

Also, my employer also said that my break time has to be before the meal break, and it is by law as well?

Thank you very much!
Posted by: Amelia

Hi daphne! Under California law, the employee must be given a meal break — but the employer can dictate when that meal break will be. This is also true of the 10-minute rest break.

Some states require that the employee work at least 2 hours before being given a meal break. This is to prevent an employee coming to work at 6 am and being given a “lunch break” at 8 am. However, your employer is incorrect — California law does not require this. The law specifies that the employee must be given a meal break on a shift of 5 hours or more, not when that meal break must occur.

Nevertheless, it is the employer — not the employee — who determines at what times meal and rest breaks will be taken. We have to side with the employer. It is unreasonable to expect that you will take a 30-minute meal break after working for 75 minutes. It would be more reasonable for the meal break to be in the middle of the 7-hour shift. Employees are expected to eat before their shift starts, regardless of what time of day or night they come to work. An employee who takes his or her break at an unapproved time can be disciplined or terminated.

The employer must also give you a 10-minute paid rest break in the middle of each 4-hour work segment “or major portion thereof.” This means that on a 7-hour shift, you are entitled to two paid 10-minute breaks. Again, your employer is wrong — there is no legal requirement that the rest break come before the meal break. But again, the employer has the right to schedule these rest breaks at a time that is convenient for the employer, although they should be as near the midpoint of that 4-hour segment as possible. An employee who does not take his or her break at the scheduled time can be disciplined or terminated.

A reasonable schedule for an employee who works 11 am to 6 pm would be a 10-minute break at 12:35 p, a meal break from 2:15 p to 2:45 p, and a 10-minute break at 4:20 p. However, again, the employer can schedule breaks at his or her convenience, within legal limits.

The bottom line is, yes, under California law you are entitled to meal and rest breaks. However, you need to take those breaks when the employer tells you to, not whenever you feel like it. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm and http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm
Posted by: yadira

Hi Amelia! i wonder if i work 5pm to 11pm and i am force to take 30min break and sometimes i don’t even finish to take my break because they call me to come back to the work place, is this 30 min has to be deducted from my check everytime, eventhought that is an minimum wage?and one more thing.. last week i worked 9am-10pm that’s an 13hrs shift and they did’t pay me no over time, no doble pay nothing what i have to do ?
Posted by: Amelia

Hi yadira! It’s interesting that you post this question — our coworker Derrick is working on an article for next week about class action suits against employers who automatically deduct breaks from employee wages. Check back on the blogs next week for more info on that!

To answer your questions, the California employer must pay the worker for all the time she works, under both the state and federal minimum wage laws. If you take a 22 minute break and the employer automatically deducts for a 30 minute break, that is illegal.

Under California law, you are entitled to overtime at 1.5 times your average hourly rate for the 8th through 12th hours of work. After 12 hours, you are entitled to overtime at twice your average hourly rate.

The solution for both of these problems is the same. Tactfully raise this issue with your employer, letting them know that you think you are not being paid correctly. If they don’t give you the money you are owed on your next paycheck, file a wage complaint with the California Division of Labor Standards Enforcement or DLSE at http://www.dir.ca.gov/dlse/FAQ_Overtime.htm. HTH, and thanks for reading the blogs!~ Amelia
Posted by: monica

when does break and lunch actually start? My company requires that I take my break and lunch, that’s fine. But we have to go through security which takes about 2 minutes sometimes. I heard that break and lunch actually starts when you are at final rest area. Is this true? or does it start when I leave my work station?
Posted by: Amelia

Hi monica! You are correct that in California, your break or lunch starts when you reach the break area, after going through security. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Laura

Hi. My husband has a major problem with his employer not giving him breaks at the required times or not giving breaks and lunches at all because his boss wants to leave early for the day. is this legal?
Posted by: Amelia

Hi Laura! No, if your husband is an employee in California, this is not legal. Unless the employee is completely relieved of all duties, then the employee must be paid for the meal period — but the meal period must be provided unless the employee has agreed in writing to waive it. Employees are not allowed to waive the two 10-minute rest breaks during the work day.

Here’s the good news: when the employer fails to give an employee the required breaks, OR the required meal period, the employer must pay the worker for an additional hour of work. Suppose your husband has worked 50 days without receiving a meal break. The employer must pay him for an additional 50 hours, over and above the time worked. Suppose in addition, your husband has not been permitted to take one or more of his 10-minute breaks on 40 days. The employer owes him 40 hours of pay, over and above the time he worked and the extra hour for the meal periods. That means the employer would owe your husband 40+50 hours of pay, or 90 hours of pay. (These extra hours of pay do not count towards overtime.)

You husband should figure out how many days in the past 3 years he has been required to work without a meal, and how many without breaks. Then he should contact the California Division of Labor Standards Enforcement or DLSE at the link below, and file a wage complaint for those unpaid wages. We can guarantee that once the employer has to pay your husband for the extra hours, he will receive every meal and rest break from now on. HTH and thanks for reading the blogs!~ Amelia

File a wage claim at: http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
Posted by: annie

I worked for a FT for a California Insurance Company from 9/08 to 10/25/09. Although they told their employees “that we had to take lunch breaks” or it is grounds for termination, I always ended up working through mine. It was clear that I was doing so, as management always saw me plugging away at my desk. I did put on my time card that I took a lunch though. At one point I made a smart remark to my supervisor about as they were denying me overtime and I was on OVERLoad with Claims.
I eventually went out on a Disability due to stress on 10/15/09. After a 5 months I am ready to find another job. As I quit when I was disabled, on 2/14 because I was having too much anxiety about going back to work for that company, for fear that I couldnt keep up.
I was notified that I would not be getting my Profit sharing for 2009 as I would not be there on 3/15 to be in receipt of it.
So, now I am unemployed.and feel pretty ‘screwed”.
Is there any recourse for me? Thanks for all your help.
Posted by: Amelia

Hi annie! No, you probably do not have any recourse here. We don’t see that your employer has done anything wrong. Many, many employers require that workers be employed on the date that bonuses are paid, or the employee is not eligible for the bonus. You quit voluntarily on 2/14. You would have needed to be employed until 3/15 to qualify for the 2009 bonus. So that’s pretty cut and dried.
California law requires that every employee take a meal break. When you skip your meal break, the employer is in violation of the law. Most California employers would terminate you for this.
Here’s the good news: under California law, the employer owes you one additional hour of pay for each day in which you did not take a lunch break. The additional hour of pay does not count towards overtime. You can file a wage complaint with the California DLSE for the back wages. The wage complaint will be complicated a bit by the fact that you turned in time sheets showing that you actually took the breaks, but it won’t hurt to try. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lulu

Hi! I’m working as a nurse here in California. I work 12 hour shifts (7am to 7 pm) Last 09/2009, my hospital started enforcing lunch break before 12 pm. We started getting paid an hour extra if we take a break after 12 pm.
I was curious as to why they all of a sudden enforcing meal break. I found out that it is the law in california and has been for a while. I also found out that I could claim back wages as far back as 3 years ago. So, if i file now, I can only go as far back as 04/2007? Do i file with Dpt of Labor or get a lawyer?
Posted by: Amelia

Hi Lulu! Many times when a company finds they are in violation of an employment law, they will correct the problem and just pray that no one files a complaint.

You are correct that this has been the law for several years, and you can file a wage complaint for the extra hour per day that goes back 3 years. You would file it with the California DLSE, the Division of Labor Standards Enforcement. They will force the employer to pay you, without any charge to you. An attorney would charge you a fee. HTH, and thanks for reading the blogs!~ Amelia
Posted by: tirin

Hi! Amelia I just want to ask you, in the restaurant that i work they have cameras and all the staff the records 24/7 the restaurant,but i want to know if is legal to record you with the surviellance camaras an d with the audio included. last time i was working and i herad some voices ad i notice that the owner was talking, and one of my co-workes says tell me that the manager says they are recording us with audio so they can know everything that we say in the restaurant.
Posted by: Amelia

Hi tirin! First of all, it sounds like you don’t know for a fact that the employer is recording conversations with coworkers — you have only heard a rumor. It may be that your coworker is mistaken, and this is only a video camera. It would probably be ineffective to tape conversations in a restaurant, where there is so much background noise.
However, we will say that in some cases using a camera that records audio would be legal. Many employers would have workers sign an employee handbook or agreement at hiring that gives permission to be video taped. It is less common for the agreement to also include permission to tape audio, but it does occur. If this were being done without your permission or knowledge, in an area where you had a reasonable expectation of privacy, it might be unlawful. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Dave

Thanks for the informative blog!

I work 12 hour rotating shifts. On my night and weekend shifts I am working alone, and have to work through my meal break. As such, they pay me the extra hour of pay for each shift when this occurs.

Obviously, I also miss my 10 minute rest breaks during these shifts. Should I be receiving a separate “1 hour penalty payment” for missing the rest breaks in addition to the meal breaks? Or does a single “1 hour penalty payment” cover the employer for all missed breaks?

Thanks again!
Posted by: Amelia

Hi Dave! Thanks for a great question! The California DLSE or Division of Labor Standards Enforcement specifically limits the exra hour penalty payment to one per shift. So if an employee misses one break, both breaks or both breaks plus meal break, the employee is still entitled to only one additional hour of pay. HTH, and thanks for reading the blogs!~ Amelia
Posted by: deborah

my friend works a split shit 6-10 and then 1-5, she only gets paid two breaks, and misses the lunch because the employer sends her home for a few hours, is this legal, as she has to be in work mode from 6-5pm, its not like after her 1st shift she can go and have a couple drinks, she has to go back to work, thanks for the response, should she be paid a lunch when she works 8 hrs in the day but not consecutive?

Deb
canada
federal
Posted by: Amelia

Hi deborah! Working a split shift is tough, and your friend has out sympathy. However, there is no inalienable right to drink during your lunch hour. From your post, we are not clear on whether you are in California or Canada. Unfortunately, we do not address employment law in Canada. It is just too different from employment laws in the U.S. Every U.S. state has different employment laws, so if you are in the U.S. please post another comment telling us which state you are in. HTH, and thanks for reading the blogs!~ Amelia
Posted by: frank villagran

i work for a phone company in california and i drive a company vehicle they tell me i can only eat within 1 mile radius of my last job that i completed is that correct?
Posted by: Amelia

Hi frank! Well, yes and no. The phone company can tell you that you cannot drive the truck more than 1 mile for lunch. In that case, they are limiting the use of the truck, not dictating to you where you can eat lunch. That’s probably a reasonable limitation.

If every employee drove 5 miles to and from lunch, that’s 10 miles per day or 50 miles per week. If the company has 100 trucks, that’s an extra 5,000 miles per week, or 260,000 miles per year. If they replace the trucks after 130,000 miles, this policy saves them from buying 2 trucks per year. And that doesn’t include the cost for gas.

However, California has the strictest meal break law in the nation, and it requires that an employee who cannot leave the premises for lunch be paid. So you may be entitled to payment for your lunch hour. If you are not being paid for meal breaks, contact the DLSE and file a complaint. Otherwise, all we can suggest is that you pack a lunch. Sorry. HTH, and thanks for reading the blogs!~ Amelia
Posted by: dolores

i need info lets say i start a break an manager comes to break room to tell me i have to go back to work do i get to start my break all over or do i do the 5 minutes that was remaining before i was told by manager to go back to work
Posted by: Amelia

Hi dolores! Under California law, any time you miss one or more breaks, you must be paid an additional hour by your employer. If you work 8 hours but take a 5-minute break instead of a 10-minute break, you must be paid for 9 hours at your regular rate. Taking two 5-minute breaks is not the same legally as taking a 10-minute break. If you are not being paid the extra hour, you need to file a wage complaint with the California DLSE, the Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/dlse.html. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kathy

My husband works for a special park district in the East Bay. He works from 6:30 until 3:00 PM. His boss has decided all his employees must combine their lunch 1/2 hour and their 10 minute afternoon break. They are hourly employees. Their lunch is at 11:30 and with the combined break, they return at 12:15.

Can he legally do this?
Posted by: Amelia

Hi Kathy! No, the supervisor cannot do this. As long as your husband is covered by the California break law, he is entitled to a 10-minute break at approximately the middle point of each 4-hour work segment or major portion thereof. The state defines major portion thereof to mean any work segment over 2 hours. Even if an employee wanted to skip these rest breaks, state law does not allow it.

Giving the employee a longer lunch does not compensate for not giving the employee the rest breaks required by law. Since your husband starts at 6:30, he should have a 10-minute break at about 8:30 and another in midafternoon, about 1:30 pm.

Here’s the good news: under California law, the employee is entitled to an extra hour’s pay for any day in which he or she does not receive all applicable breaks. In other words, if your husband has worked for 100 days under these conditions, he is entitled to an additional 100 hours of pay. (However, this pay is straight time, not overtime.)

Your best bet is to file a wage complaint with the California DLSE for the extra hour of pay at: http://www.dir.ca.gov/dlse/dlseWagesAndHours.html . The DLSE will investigate and if they find your husband missed one or more breaks on any day in the past 3 years, they will force the employer to pay the extra hour of wages for that day.
Employers who have to pay even one hour of wages tend to be very careful about giving breaks in the future. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kathy

Amelia,

Thank you for the information. There are a few things that seem to be underhanded where he works. For instance, several years ago he was made a Supervisor when he had no one to supervise. There was a huge project that involved a lot of overtime. It appears now the position was only made available to prevent overtime pay.

While he was a Supervisor, (he no longer is) he would make out his timecard to reflect the hours he worked. Let’s say he worked 12 hours so he would write down 8 plus 4 although he was well aware he wasn’t getting paid for the 4. After he turned his timecard in, the boss would change the time card to read only 8 hours.

The most recent issue is the boss stopping automatic deposits of paychecks without the employee’s knowledge. There’s nothing like thinking your paycheck is in the bank when it isn’t.

Again, thank you. My husband is going to talk to the other guys and hopefully they will file a claim with the labor board. I think their biggest fear is retaliation. The bosses seem to get away with whatever they want despite the employee complaints. The State is probably the only way this nonsense is going to stop.

Kathy
Posted by: Amelia

Hi Kathy! We agree that filing a complaint with the DLSE is the only way this will stop.

Making your husband a supervisor in name only to avoid paying overtime was not legal. In order to be exempt from overtime, an employee’s duties must meet certain tests. If this occurred less than 3 years ago, your husband should file a wage complaint for the unpaid overtime. Unfortunately, the statute of limitations on wage issues usually expires in 2 or 3 years.

When the employer stops direct deposit of wages, that is a huge red flag that he is having financial difficulties. Direct deposit is much easier for the employer, if he actually has the money in the bank a few days ahead of time. If he does not have the money to meet payroll until payday, or a day or two afterwards, he has no choice but to issue paper paychecks. Our suggestion to any employee in this situation would be to look for another job.

It is illegal to retaliate against an employee who makes a complaint to a state or federal agency in good faith. Even if the wage complaint proves to be invalid, the employee is protected from negative action. We agree that this employer will not voluntarily change his actions otherwise. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Liz

We are scheduled to work from 7-3:30 with 30 minutes lunch. My boss doesn’t get there until 7:30-8:00. Sometimes later. He will not let us “clock in” until he gets there which is shorting our hours. He states that we do not start work until he gets there. Even though we are scheduled a specific time, should they pay us since we are there at 7 waiting for him to show up?
Posted by: Amelia

Hi Liz! Yes, under both California and federal minimum wage law you must be paid for the time you are required to show up and stand around waiting for your boss. You should immediately copy as many work schedules as you have access to. Then, contact the California DLSE at http://www.dir.ca.gov/dlse/dlseWagesAndHours.html and file a wage complaint for the time you were required to be on the premises but were not paid. HTH, and thanks for reading the blogs!~ Amelia
Posted by: tirin

Hi Amelia! i have a question i work only from 5pm to 11pm, and my boss says that i have to take 30 minutes break..this 30 minutes are unpaid is that ok? and also when i fill out the application form we agree that he is going to provide us with free food drink now he changed his mind and we have to pay 50% of our food and i wonder if he is correct or not? and we never take our 10 minutes rest time he says that he is working according to tha state law if there is any form that i need to fill out please let me know.. thanks
Posted by: Amelia

Hi tirin! The meal breaks are okay, but the lack of a rest break is not. California law does not require that the employer give you a meal break on a 6 hour shift, but the employer is allowed to require you to take the meal break under company policy. Any employee who does not take the meal break can be disciplined or terminated. You must be allowed to leave the premises, in order for the meal break to be unpaid. If your boss requires that you stay on the premises, then the meal break must be paid.

There is no requirement that any employer provide you with free food and drink. Even if that was the arrangement when you were hired, the employer is allowed to change it at any time.

Not being given a rest break is a problem. California law requires that an employee be given a paid 10-minute rest break at about the midpoint of each 4 hour work segment “or major portion thereof.” If you work exactly 6 hours, you are entitled to one rest break. However, if you work 6 hours and 1 minute, you are entitled to two paid 10-minute breaks during the shift. That’s because the California DLSE regards anything over two hours as a “major portion” of 4 hours.

Your employer is probably reasoning that getting an unpaid 30-minute break compensates for not getting two paid 10-minute breaks, but he is mistaken. Regardless of when you take the meal break, you are working 3 or 4 hours without a rest break, which is a violation. (Be aware that workers in a few occupations are exempt from this law, like home healthcare attendants.)

The good news is that you are probably entitled to an extra hour of pay for every day that you were not given all your rest breaks. File a wage claim at: http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm
Posted by: Hi

Hey Amelia

I work at a major retail store and sometimes I am only scheduled for 4.5 hours for the day. Do I still get a lunch on these days and if not do I at least get a second break??
Posted by: Amelia

Hi Hi! Sorry, but under California law, no. You are entitled to only one rest break and no meal break.
California law requires that employees be given a meal break on a shift of 6 hours or more.
The law also requires that employees be given a rest break every four hours “or major portion thereof.” 30 minutes is not a major portion of 4 hours, so you are entitled to only one rest break. HTH, and thanks for reading the blogs!~ Amelia
Posted by: MONSTRITO

hI! so you saying that a person that works only 6hrs a day is not require under the state law to get the 30min.meal break(unpaid) unless the company policy requires to do it?
Posted by: Amelia

Hi Monstrito! No. The previous question involved a shift of 4.5 hours. Under California law, an employee cannot be required to work a shift of more than 5 hours without a meal break.

Exception: if the employee and employer mutually agree, the employee can skip the meal break on a shift of 6 hours or less. However, if one does not agree, the employee must be given a meal break and must take the meal break. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
Posted by: Roxie

Message Is my employer allowed to write me up because I clocked in from a thirty minute lunch 1 to 2 minutes early? In the state of California?
Posted by: Amelia

Hi Roxie! Yes, in general an employer can write you up whenever you violate company policy. In the workplace, the employer makes the rules.
California law is very specific that the employer must give a meal break of “not less than 30 minutes.” That means if you clock in 1 or 2 minutes early, the employer has broken the law.
However, even if you were in another state, if the employer had a policy that employees would take 30-minute breaks, the employer could write you up for returning early. HTH, and thanks for reading the blogs!~ Amelia
Posted by: lulu

Hi Amelia
Just giving update on my case.

I have filed for wage claim May 2010 for missed meal breaks (break after the 5th hour).
I just spoke with Deputy Labor Commissioner today. He said there have been changes and one of the change is it doesn’t matter what time you took your meal break as long as you have taken them.
I asked him when this change took effect and he cannot tell me.
I checked ca department of industrial relations for updated/ new law/ regulations re meal break nothing new. It’s still the same. No change.
INDUSTRIAL WELFARE COMMISSION
ORDER NO. 2-2001
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.

I feel so cheated. This hospital staffing is so bad, they tell us to have lunch break but provide nobody to cover our patients while we’re having lunch break. It’s not right that they get away with it. What else can I do?
Posted by: Amelia

Hi lulu! We are just as disappointed as you are. It sounds like the California DLSE or Division of Labor Standards Enforcement is not willing to enforce this law. As long as you have a meal break at some point, they are going to ignore it. That’s sad. Your only other option might be to hire an attorney to sue the employer, but that would probably be expensive and might prove pointless. Sorry, wish we could be more helpful.
If your patients are being left unattended during your meal break, you might be able to report that to the state agency that issues the license to your employer, whether that is a hospital license or a nursing home license. Thanks for reading the blogs!~ Amelia
Posted by: Danielle

I recently worked a shift from 9:15am to 6pm…by California law I was required to clock out by 1:15 and no later than 2:15…i however clocked out at 2:26 because our department got slammed with customers (retail pharmacy) and i was helping a customer deal with an issue that needed to be resolved right then and there and there was no one else to help…that punch out was 11 min over and caused me to get a write up…what can i do because this is not my first time (its actually my 2nd write up) and they said its the final write up…can i actually get fired from a company for not taking my breaks on time when they are always getting on us to strive for excellent customer service?!?!?! its very difficult to figure this out…do you have any suggestions?
Posted by: Amelia

Hi Danielle! Yes, you can actually get fired for violating the company policy (and California law) that you will take your break within 5 hours of clocking in. This is true, even if you take your break late because you are helping a customer and trying to deliver the excellent customer service that the employer strives to deliver.

This is called managing multiple priorities and it is a situation that occurs in most jobs, where employees are expected to achieve two different goals at the same time. In this case, you are expected to both deliver excellent customer service and to follow the company policy/state law on break time.

The solution here is for you to take your break at the earliest time, rather than the latest time. If you had planned to clock out at 1:15 pm and were 11 minutes late, you would be clocking out for your break at 1: 26, which would not be a problem. If this is impossible (because a coworker is on break at 1:15) then you should have a calm, respectful, tactful conversation with your manager now — before the situation occurs — and ask for her suggestions on how to handle the problem better. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Alyssa Vargas

Hi Amelia,
Recently my father was terminated from his job because during one of his breaks that was paid he left to run an errand that didnt take more than the time he had for his break. According to his supervisors and HR lady who has no educational background on the position said that he was terminated for falsification of documents because he left on his break, which in the 17 years that my father worked for the company had never heard of. Never in his whole career had there been someone who got terminated for something like that and never was he or the other workers told by the company or the supervisor that that was not permitted and that the consequence would be loosing his job. My question is, is there anything that we can do or is that even legal, I hope there is something that we can do because my father is an honest hardworking man and for them to target him like this I think its unethical and morally wrong for the company or these people (supervisors)to be able to do this! Thank you for your help its greatly appreciated!!! Alyssa Vargas
Posted by: Amelia

Hi Alyssa! Unfortunately, this is entirely legal and justified. In California or any other state, the employer can require that employees remain on the premises during any paid breaks. Your father should have asked permission to leave the property during his break, and even then it would probably have been denied. very few employers would allow this because the employer could be financially liable for any accident caused by your father while on the clock. HTH, and thanks for reading the blogs!~Amelia
Posted by: Alyssa Vargas

Thank you Amelia for your response, my father got his job back he fought it and won, yes he took full responsibility of leaving but his supervisor and company never made it clear to any of the employees that they could not leave during breaks, turns out his supervisor is under review for harrasment now because my father was the only one who got in trouble for that, not to mention its not the first time that this supervisor is under review for that and it seem to be that the only people his supervisor has problems with is Hispanics. Thanks again for your response!!
Posted by: Amelia

Hi again Alyssa! Yayyyy! We love to hear those results! Yes, your father was definitely right if other employees who left during break were treated differently. Thanks again for reading!~ Amelia
Posted by: Danielle

Hi Amelia, I’ve been following this blog for a few months now and I’m hoping you can help me out with this problem. I work in a call center and my employer frequently brings in prospective clients into our office to see how our office works. Recently they’ve started to tell us we cannot have water (which has to be in a spill proof cup) on our desks during the tour. We are not allowed to leave our desks without permission and they have a maximum amount of people allowed off the floor at any given time. It’s overly complicated to say the least. Though my questions is this: is it okay for them to disallow water at our desks for the duration of the tour, given the fact the tours can last sometimes up to an hour? If this isn’t the right place for me to find out about this, could you point me in the right direction?
Posted by: Amelia

Hi Danielle! This is a complex issue. If the employer did not allow you to drink water at work at all, that would be a health and safety issue under OSHA. However, no employee is going to suffer dehydration from not drinking water for an hour, so this is probably legal. If you were working outside in the sun on a day when temps were over 100, this might not be acceptable. OSHA does not set strict guidelines, but rather they assess the situation on a case by case basis. Our best opinion is that they would allow this. HTH, and thanks for reading the blogs!~Amelia
Posted by: Dale Warren Adams

If i’m working from 7am to 5pm what are the breaks and lunch times and if I get paid on the 2nd and 17th of the month when should I get paid if those days fall on a sunday ,saturday or holiday thank you for your help.
Posted by: Amelia

Hi Dale! From your post, we are not sure if you are an exempt or non-exempt employee. Different rules apply to each. For a reading on your situation, contact the California DLSE at http://www.dir.ca.gov/dlse/. HTH, and thanks for reading the blogs!~ Amelia
Posted by: taylor

hello, i work a 12 hour shift in a unionized hospital in california. we take one 30 minute unpaid meal break and 3 paid breaks. the second meal break is waived.

on occasion, we are asked to work an additional 4 hours overtime/unscheduled due to short staffing. we have by “past practice” only taken an additional break for the 4 additional hours worked. union contract does not address this topic.

recently, the manager has said we need to take an second unpaid meal break when working the additional 4 hours. can they make us do this, it would mean we have to stay 30 minutes longer rather than 4 hours.

also, we were given a grace period when clocking out/in for lunch. management removed the grace period and now we are written up if we clock in early and docked pay if we clock in late.

thanks
Posted by: Amelia

Hi taylor! Yes, the employer can do this. Past practice only sets a precedent until the employer changes that practice, which the employer can do at any time, for any non-discriminatory reason or for no reason. There is nothing in your union contract or California law that prohibits the employer from requiring employees to take an additional 30-minute meal break on the second 8-hour shift. The California meal break laws are the minimum standard that an employer must follow, not the maximum standard that the employer may follow. The employer has changed their meal break policy and can discipline or terminate any employee who does not follow the new policy. The new policy seems entirely reasonable. Frankly, we would not want to be treated by a healthcare professional who had not eaten in 12 hours. But even if the policy was not reasonable, the employer can impose it.

There is also no law that the employer must provide a grace period for employees clocking in and out for lunch breaks. Again, the employer sets the policies and the employer has the right to unilaterally change them. When you say employees are “docked pay” if they clock in late, we assume you mean they are paid only for the time they actually worked. HTH, and thanks for reading the blogs!~Amelia
Posted by: Melissa

I work at a restaurant in California….Does the law require that my employer provide a break area for our meal breaks?….They make us leave the property. Thank you!
Posted by: Amelia

Hi Melissa! No, California law requires only that the employer provide a break area if employees are not allowed to leave the premises on their meal breaks. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Debbie

When a canvasser is out in the field are whe able to clock them out for lunch when they go and are they required to get paid for the drive time back to the office?
Posted by: Amelia

Hi Debbie! The best practice would be for you to give the canvasser a time sheet and require him or her to log the time they went on lunch break each day, and sign the sheet at the end of the week. Then, you could manually change the time cards to reflect this lunch break. The answer to your question is, yes, you can clock the employee out and back in for a meal break — but only if that information is accurate. By law, an employer in California and any other state must keep accurate records of all hours worked. In other words, you cannot clock the employee out from 12:00 to 12:30 if the employee actually took her break from 1:00 to 1:30. While this is a minor point, if you automatically deduct a meal break it is all too easy for you to deduct breaks when the employee did not actually take one, which is illegal.

Yes, when you require the employee to travel back to the office in the afternoon, they must be paid for this time. If that puts them over 8 hours per day or 40 hours per week, they must be paid overtime. Driving is work, under both California and federal law. The exception is driving home. If you allowed the employee to drive directly from the worksite home, without stopping by the office, they would not be entitled to payment for that time. (BTW, they are also entitled to payment for a drive from the office to the worksite in the morning.) HTH, and thanks for reading the blogs!~ Amelia
Posted by: John

Hi Amelia, I wanted to ask how California’s 10 minute rest periods and 30 minute meal periods work together.

1. If someone is scheduled for a shift from 9:00am-2:45pm, are they only entitled to a 30 minute (unpaid) meal period or both a 10 minute (paid) rest period aswell as a 30 minute (unpaid) meal period? Would the 30 minute unpaid period cancel the entitlement to the 10 minute paid rest period?

2. If someone is scheduled from 12:00pm-8:00pm, are they entitled to a 2nd 10 minute rest period (paid) or do they have to work until 8:30pm to be entitled to it (counting only the time worked by subtracting the 30 minute unpaid meal period)? At what point is the 2nd 10 minute paid rest period earned and is it affected by scheduled time or actual time worked (subtracting the 30 minute unpaid work period).

Thanks,
John
Posted by: Amelia

Hi John! California meal and break regulations are complex, but we are here to help you sort them out. Basically, the unpaid time during the meal break does not count in figuring how many rest breaks the employee is entitled to. But, the 30-minute meal break also does not cancel out a rest break. The two are entirely separate.

California employers are wise to err on the side of caution in giving meal and rest breaks, because the penalties for non-compliance are severe. The employer can be required to pay an extra hour to any employee who does not receive all his or her breaks during the day. So a missed 10 minute break = an extra hour of payroll expense.

A California employee who works more than 5 hours is entitled to a 30-minute meal break. The meal break can be unpaid if the employee is completely relieved of all duties and allowed to leave the premises. (If the shift is 6 hours or less, the meal break can be eliminated if both employer and employee agree.)

IN ADDITION to the meal break, a California employee is entitled to a 10-minute paid rest break on each work segment of 4 hours “or major portion thereof.” The California DLSE or Division of Labor Standards Enforcement considers anything over 2 hours a major portion of 4 hours. This break should occur in the middle of that work segment, whenever possible.

To address your specific questions:
1. The employee who works from 9 am to 2: 45 pm is working more than 5 hours but less than 6. The meal break could be waived, if both the employee and employer agreed. We would not recommend that any employer agree, because if the employee works an extra 16 minutes, the employer is in violation of the law.

Assuming that the employee takes a 30-minute meal break, she is working 5 hours and 15 minutes. She is entitled to one 10-minute paid rest break. If the employee takes her lunch from 11 am to 11:30 am, she works 3 hours and 15 minutes after lunch. She should be given a rest break midway through that time, so far as possible. If she goes to lunch from 12:30 to 1 pm, the rest break should be at the midpoint of her 3.5 hours of work in the morning.

If this employee worked 46 minutes late one day, she would be working 6 hours and one minute. She would be entitled to a second 10-minute rest break, since 2 hours and one minute is a “major portion” of four hours. Yes, the California regulations are that picky.

2. A person who works from 12 noon to 8 pm with a 30-minute unpaid meal break is working 7.5 hours. Under state law, he or she is entitled to two 10-minute paid rest breaks in addition to the meal break. This is because the break requirement is for a 10-minute paid rest break for every 4 hours “or major portion thereof.” The employee has worked 4 hours plus 3.5 hours. The 3.5 hours is more than 2 hours, therefore it is a major portion of 4 hours, and entitles her to a second rest break. If the employee takes her meal break from 4 pm to 4:30 pm, she is entitled to a 10-minute paid rest break at about 2 pm and another at about 6:15 pm.

Meal and rest breaks are based on the time the employee actually works, not on scheduled time. So an employee who works from 12 to 8 with a 30-minute unpaid meal break should receive breaks based on a 7.5 hour work day. However, if that employee ends up working until 11, he or she must receive breaks based on a 10.5 hour work day. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Vanna

I work front desk at a hotel. I have signed the waiver for my lunch break, but my question is regarding my 10 minute breaks. We are not supposed to leave the front desk thus i am not taking any 10 minute breaks. Me being a smoker, would like to go outside (not to leave the premises) but where i can still keep an eye on the front desk and hear the phone ring. Would this violate the 10 minute break law?
Posted by: Amelia

Hi Vanna! There are two separate issues here, the 10-minute breaks and smoking. An employee who is required to remain at the front desk waiting for phone calls, etc is not on a 10-minute rest break. Since your employer is not giving you the 10-minute rest breaks, they can be required to pay you an additional hour for every day in which you miss one or more breaks. You should file a complaint with the California DLSE, the Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You could file a wage claim for one hour’s pay, for each day you have worked. It is illegal for an employer to retailate against an employee who files a waig claim in good faith.

However, there is no law that permits a California employee to smoke on her breaks. An employer can prohibit smoking on the premises. Most hotels would consider it unacceptable to have a front desk clerk on duty outside smoking. To answer your question, it does not violate the California state break laws, but there is no law that would require the employer to allow you to do this. Because you are still watching the front desk, it also does not count as your break. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Israel

When working more than 10 hours but less than 12 do I still have take another lunch or can I just take a 10 min break
Posted by: Amelia

Hi Israel! When a California employees works more than 10 hours but less than 12 hours per day, and has taken the first meal break, the second meal break can be waived by mutual agreement. This means that both you and the employer must agree, usually in writing, that you are voluntarily giving up the second meal break. Some employers would permit this, and others would not. There is no law that the employer must permit you to skip the second meal break. HTH, and thanks for reading the blogs!~ Amelia
Posted by: josie

If you work alone and are past the 6 hr working day are u required to take a 30 min break or even a 10 min break.
Posted by: Amelia

Hi josie! The employer can require that you take a meal break even if you prefer not to. If both you and the employer agree, you can skip the meal break. However, every employee must be given his or her 10- minute breaks. If you are not being given breaks, you are entitled to be paid for an extra hour every day that you work. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Nick

if an employee works 8 hours with a paid 30 min lunch and breaks when do they start accruing overtime? is it at 8 hours or 8.5hrs?
Posted by: Amelia

Hi Nick! If the employee is working during the meal period, and taking an on-duty meal period, then overtime must be paid after 8 hours of work. However, the regulations are less clear on the situation if the employee performs no work during the meal period, but is required to remain on the premises. Contact the Californa DLSE or Department of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Stefanie

Hi! I work at a restaurant and our break system doesn’t feel fair to me or my fellow co-workers. My boss makes us take our break but we have to pay someone 10 dollars to watch our serving section for thirty minutes. It just doesn’t feel right that this money has to come out of our pockets. Especially when we have no choice in the matter since the break is mandatory. Is it legal for our employer to force us to pay a breaker in order for us to go on a mandatory 30 minute break?
Posted by: Amelia

Hi Stefanie! No, the employer cannot charge you for the break that you must take. You should contact the California DLSE or Department of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/. At most restaurants, one server covers another server’s station during breaks, then they switch and each server keeps her own tips. You and your fellow servers could try just not paying the breaker. It would be illegal for the employer to take the money out of your check, and illegal for him not to give you a break. HTH, and thanks for reading the blogs!~Amelia
Posted by: Luis

Message Hi, I recently was terminated for Meal Compliance and filed for Unemployment benefits. I recently received a letter from the EDD indicating that I am not eligible for benefits because I broke a reasonable employer rule. I worked passed my fifth hour by 4-6 minutes, it was not for the lack of me not working nor was my performance in question. How is this possible when it is a law signed by Gov. Arnold back in September 30, 2010. How is it that an individual who has never filed a benefit claim be denied benefits by a law that was put into place and state it was my fault for breaking the company rule. Please advise
Posted by: Amelia

Hi Luis! Unfortunately, this happens all the time. The employer has a company policy that workers will take their meal break before the 5th hour of work. (Why they have that policy is irrelevant.) You intentionally broke that rule, therefore you were fired for misconduct. An employee who is fired for intentional misconduct does not quality for unemployment benefits. The fact that you were also breaking the law just makes it worse.

By the way, the California meal break law was not something just introduced in 2010. It has been around for at least a decade, and probably closer to two decades. If you notice, the article above was written by Sarah in 2006, and this was not a new law then.

You can appeal the EDD decision. If you were not aware of the company policy regarding meal breaks, and this was your first violation, you might win. Also, if it was impossible for you to take your meal break (for example, if it was busy and there was no one to relieve you) then you might win the appeal. If a supervisor told you to work through your meal break, you might win.

If this was the first and only time you violated this company policy, you could hire a lawyer and sue the employer for wrongful termination. However, that would be an expensive, lengthy process and you might not win.

Every setback is an opportunity for us to learn. The important lesson to learn here is that workers must follow all company policies. Just working hard and avoiding errors it not enough — the employee must also follow the rules set by the employer. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Vlad

I am an hourly employee and my california employer schedules me for a 9 hour shift, and insists that I take a 1 hour meal break in the middle of the day. I am then paid for working 8 hours, but I work from 730 – 430. Is this legal?

They also ask me to work a rotation of on-call shifts every 4 weeks, I work 40 hours, and in the same week I am on-call an additional 41 hours, including weekends. I am expected to remain sober, within 30 miles of our office, and must respond to phone calls within 30 minutes during those 41 hours. I am paid overtime/compensation ONLY if I receive calls, otherwise this is just considered part of my job. Am I due some compenstation for this on-call time??
Posted by: Amelia

Hi Vlad! Sorry, but both of these policies are legal, and they are very common in the workplace.

For the meal break, although you may be in the building for 9 hours, you don’t actually work for 9 hours. If your meal break is at 11:30, you work from 7:30 am to 11:30 am, and then are off from 11:30 am to 12:30 am. You then return to work from 12:30 pm to 4:30 pm, so you have worked a total of 8 hours with a one-hour unpaid lunch. This is almost universally how employers handle meal breaks.

In fact, your employer would probably argue that you are not even working 8 hours, because you are being given at least two 10-minute paid breaks during the day, under California law.

If you are free to leave the premises, and you are performing no work during your meal break, it can be unpaid. If the employer requires that you remain on the premises or you perform some work during that hour, you should be paid for the entire hour.

The way the employer is handling on-call time is also entirely legal. You must be paid for all the time you work, including work-related phone calls. However, simply carry a beeper or cell phone around with you is not legally considered work under state or federal law. The employer could even require that you be on call 24 hours per day, 365 days per year, and pay you only for the time you work. California provides more protection for workers than any other state, and both of these policies are well within state law. HTH, and thanks for reading the blogs!~ Amelia
Posted by: patty

Hi I’m a medical assistant and I work 10 hours a week. I work 2 to 3 hours a day and I get an half an hour to an hour of break eveyday so I end up working 2 hours a day, Am I supposed to get a break if im working less than 5 hours a day ? Without getting paid on my break. We don’t get paid on our break but the doctor doesn’t let me or my co-workers leave the office. She says that if we do we get fired …I mean is my break without getting paid. Ii think i could leave the office don’t you think?
Posted by: Amelia

Hi patty! The doctor can require that you take a meal break of 30 to 60 minutes on a 2-3 hour shift. Under California law, an employee MUST be given a meal break on a 5 hour shift. But, that is the minimum that the employer MUST allow, not the maximum break that the employer CAN require. An employer can require you to take a meal break on a shorter shift, and fire you if you do not.

The employer can also require that you remain on the premises during your meal break. She can fire you if you leave the premises. However, in California, if you are not allowed to leave the premises, then the lunch break must be paid.

If the employer required you to clock out and wait around for work, that would also be unlawful.

Show your employer the information from the site below. Respectfully state that you believe you are entitled to payment for the breaks, since you are not allowed to leave the premises. If she still refuses to pay you (or to give you back pay for the breaks) file a wage complaint with the California DLSE at http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. HTH, and thanks for reading the blogs!~ Amelia

Read more about California meal break laws at: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
Posted by: Brad

Hi Amelia. I am an armed guard working on a federal contract in Los Angeles County. I am a union member and my contract permits my employer to provide 30 min uninterupted, and off duty lunches. My contract does not state how my employer is to provide for this uninterupted, and unpaid lunch period. As I am armed Federal law will not permit me to stay on the property when off duty. State law will only permit me to carry my firearm directly to work from home and back. Last I checked local law enforcement tends to frown upon someone unloading a weapon in public or on the side of the road. If my employer has not provided the means for an unpaid and uninterupted lunch then how do I not violate one law or another for this 30min period? When this question was broached with my supervisor I was told that I have to obey all laws, but was not advised on how to do so. My supervisor told me that how I take my lunch was my problem and not his. Is my employer in any way responsible for how I am to avoid violating laws while on this unpaid, uninterupted lunch?
Posted by: Amelia

Hi Brad! No, your employer is not responsible for figuring out how you will manage to follow all the relevant laws on your unpaid lunch break.

You cannot be the only person who has ever encountered this problem. Since you are a union employee, contact the union and seek their advice on how to solve this problem. If you have coworkers who are also armed guards, ask them how they manage this issue. You can’t be the only person on the planet with this issue. You could even call the local police station and ask them for advice.

If you unloaded the gun and locked it in the trunk of your car during lunch, would that not meet the legal requirements? (If not, how did you get the gun home from the gun store?)

Can you clarify what you are requesting? Exactly what is it that you want the employer to do for you? HTH, and thanks for reading the blogs!~ Amelia
Posted by: Blog Admin

Thank you for visiting blog.laborlawcenter.com. Unfortunately we’re reserving this website to blog about current Labor Laws and we are not responding to work related matters. Your question seems more appropriate on our other website which we encourage you to visit at http://www.LaborLawTalk.com.

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