California Lunch and Break Law Regulations

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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177 Thoughts on “California Lunch and Break Law Regulations”

Israel

November 11, 2010 at 11:23 am

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

Amelia

November 11, 2010 at 4:54 pm

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

josie

January 14, 2011 at 10:57 pm

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.

Amelia

January 15, 2011 at 12:06 am

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

Nick

January 18, 2011 at 4:22 am

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?

Amelia

January 18, 2011 at 7:28 am

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

Stefanie

January 23, 2011 at 2:54 pm

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?

Amelia

January 23, 2011 at 3:23 pm

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

Luis

February 15, 2011 at 1:43 am

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

Amelia

February 15, 2011 at 8:02 am

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

Vlad

February 16, 2011 at 5:50 pm

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??

Amelia

February 16, 2011 at 7:23 pm

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

patty

March 25, 2011 at 1:53 am

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?

Amelia

March 25, 2011 at 7:13 am

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

Brad

April 4, 2011 at 1:34 pm

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?

Amelia

April 4, 2011 at 4:19 pm

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

June 21, 2012 at 10:19 am

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.

Brian

June 16, 2014 at 11:29 am

Hi Amelia,

I am a full time worker Mon – Fri from 7:30m – 4:30pm and my employer insists that I take my lunch by the 5th hour, however a majority of the 1,000 or so employees that also work here are not bound by this rule because they are in different departments and dont really care like my manager does. Is there any way i can legally request to take my lunch breakes after the 5th hour? I do not even get hungry until later in the day so i am always forced to take lunch before I have an appetite. Also is there anything I can do because this is not being enforced company wide and only in my small department? It is my understanding that the comoany only has to offer the lunch at the 5th hour and so long as they do, no liabilty on their end for breaking labor laws. Or am I wrong?

Thanks

Amelia

June 17, 2014 at 8:27 am

Brian we have empathy for your situation, but your supervisor is following California meal break law, which requires that the meal break be granted before the 6th hour of work begins. The fact that some other supervisors break the law, does not make it legal or okay. So in our opinion, you have the best manager.

You have the legal right to waive your meal break…that is, to refuse to take a meal break at all. However, you do not have the right under state law to delay your meal break. Sorry, but those are the rules. If you eat at the same time each day (even on your days off) your body will adjust and you’ll eventually be hungry at that time (and eat less at other times.)

Ken Stout

June 20, 2014 at 1:31 pm

Hello,
My employer keeps changing our lunch break times from 30 minutes to 45 minutes depending on our census. I am a certified nurse assistant working in the San Diego California area. I have looked and looked but only find where they are required to give the 30 minutes break by law after so many hours. Is this legal to do this? One day is 30 minutes then 45 then 30? How can they do that?

Thanks

Amelia

June 21, 2014 at 7:23 am

Unpredictable lunches can be annoying, Ken, but this practice is legal in California. As long as the employer is giving at least the minimum meal break required by law, they are free to sometimes give a longer one. If the employer was requiring you to take a 2-hour unpaid break in the middle of the day to save payroll, that would be unlawful.

The exception concerns the employee handbook. The California Labor Commissioner requires that employers honor working conditions set forth in the employee handbook. If the handbook specifies that meal breaks will be 30 minutes, you may have a valid case that the employer cannot vary them from day to day.

Donna

June 30, 2014 at 11:35 pm

Hi Amelia! i’m a Californian RN nurse represented by a union and my boss says that on a 12 hour shift, us employees can work up to ten hours without a lunch break before we HAVE to have our lunch period. (if we can’t take our lunch period due to lack of employees or too many emergencies, we can clock out and have a paid lunch break) however, my boss says we can work up to ten hours before HAVING to take our lunch break or clocking out if no lunch taken. is that following california labor laws?

Amelia

July 5, 2014 at 10:07 am

Yes, Donna, this is legal under California break laws. While CA has some of the strictest break laws in the nation, there are exceptions for certain employees including nurses and union workers. However, even in California, the employer can generally schedule meal breaks for the convenience of the employer–not the worker.

I agree that being told you “have” to take an unpaid break after 10 hours does not create great working conditions. You may want to take this matter up with your union next time a contract is being negotiated. However, it appears that this is lawful.

amanda

July 29, 2014 at 2:37 pm

Hi Amelia,
I have a question I started a new job and am used to the regular California breaks and lunch schedule. The company is from back east and has been in california for a little over a year. There policy is you take a break at 3 hours in, and a lunch at 5 but you can waive it. There weird thing is that they say you can waive it and work up to ten hours. I dont think thats right but they beep bringing up a brinker case. I just wanted to find out how true that was?

Amelia

July 29, 2014 at 7:26 pm

Hi Amanda,

The California break laws are pretty complex, and probably different than anything your Eastern employer has seen before. However, if they are doing business in CA, they have a responsibility to follow all the laws. If your employer is giving a meal break exactly at the beginning of the 6th hour of work each day, that’s lawful. However, if the meal break is even a few minutes late, they are in violation of the CA meal break law.

Generally, the CA break laws require that an employee be given a 30-minute meal break at or before the 5-hour point. The employee can waive the meal period by mutual consent if the shift is only 6 hours total, but the employer cannot pressure you to waive the meal period.

An employee who works a shift longer than 10 hours is also entitled to a second meal break before the end of the 10th hour. If you are working a total shift that’s 10 to 12 hours, the second meal period can be waived by mutual consent…but only if the employee took the first meal period. See more about this from the source at http://www.dir.ca.gov/dlse/faq_mealperiods.htm.

In the Brinker case, the CA courts rules that an employer must make meal breaks available but is not required to ensure that employees take them. In the past, some employers had interpreted the meal break law to mean that the second meal break could not be more than 5 hours after the first meal break. Brinker also overturned that, ruling that the two meal breaks can be more than 5 hours apart, as long as the employee has the opportunity to take 2 meal breaks in 10 hours, with one within the first 5 hours. Learn more about the Brinker case here: http://www.duanemorris.com/alerts/CA_Supreme_Court_Rules_in_Brinker_4419.html

However, it almost sounds like your employer is using this as an excuse to deprive employees of their meal breaks. While Brinker doesn’t require employers to enforce meal breaks, it still requires employers to make meal breaks available to employees who wish to take them.

Look for a full blog post about this in the next few days.

Amanda

September 16, 2014 at 2:10 pm

Hi Amelia,

I have a question regarding lunch breaks. I have read the law that requires us to offer up a 30 min meal break to any employee after 5 hour s of work. It also states that the employee (with manager approval) may waive that break if they work no more than 6 hours. Our employees typically work 8 hours or more. What I am proposing is to REQUIRE them to take a lunch of at least 30 minutes after 5 hours and that if they work 8 hours they MUST take it and cannot waive it. Is this legal?

Amelia

September 17, 2014 at 11:18 am

Hi Amanda, yes, this is legal provided you take adequate steps to inform your employees of the new policy, and uniformly enforce it. In California as in any other state, the employer can establish a policy making meal breaks mandatory, and enforce that policy. (The CA law essentially says that if an employee waives his or her meal break, the employer is not in violation of state law. However, the employee may still be in violation of company policy, and subject to the consequences.) As an employer, you have the right to set more stringent break policies than required by state law, as long as they are uniformly enforced. In fact, the CA regulations actually say that the meal period may be waived “by mutual consent of the employer and employee.” In this case, as the employer, you are declining to give consent for waiver of meal breaks.

A couple of items to consider here: 1. You should inform all employees in clear terms (preferably in writing) that effective on (date) employees who work (x) hours or more, must take a mandatory (unpaid?) meal break of 30 minutes… 2. unless they have their supervisor’s permission to skip the break, based on a business necessity. (This provision is important, because there will come a day when you need an employee to work through his or her break.) 3. Obviously, employees must be relieved of ALL work duties during their break (100% of the time) and they must be free to leave the premises (under CA law) if the break is to be unpaid. 4. Make sure all your managers and supervisors are on board with this policy, and clearly understand it. Often, when employees routinely waive breaks, it’s based on subtle pressure from managers to get more work done.5.You don’t need to publicize this fact in advance, but violations should be handled just as you would handle any other violation of company policy under CA employment laws.

Be sure to let us know if you have any additional questions!

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