California Lunch and Break Law
July 27th, 2006 Posted by SarahIn 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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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
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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