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California Meal Breaks - Labor Laws

California Meal Breaks

UPDATE (December 22, 2016):

The California Supreme Court published another decision that confirms that California employees must be relieved of "all duty" for both meal and rest breaks. In 2012, the California Supreme Court held that all meal breaks had to be "duty-free." The recent decision of Augustus v. ABM Security Services, Inc. clarifies that rest breaks must also be "duty-free." The Court noted that "rest" is the opposite of "work," so that in order to have a "rest break", you cannot be working.

In particular, if an employee is required to carry a pager, cell phone, or radio and be available to respond to calls while on a meal or rest break then the break is not a valid meal or rest break, and the employee is entitled to an additional one hour of pay. The requirement is that the employee is relieved of all duty. Even if the employee does not respond to a page while on break, the fact that the employee was expected to respond to a page if one came up means that the employee was not relieved of all duty and is entitled to the additional pay.

While Agustus v. ABM Secutiry Services, Inc. was specifically addressing security guards who were required to carry a radio while on break, the rule would apply to all positions, such as nurses or technicians, that are expected to respond to emergency situations during breaks.

UPDATE (April 12, 2012): The California Supreme Court published a decision that states that employers are required to provide employees "off-duty" meal breaks. That is, unless ALL of the following criteria are met, the employee is entitled to additional compensation for working through a meal break:

(1) The employer must relieve the employee of all duty;
(2) The employer must relinquish control over all activities of the employee;
(3) The employer must permit a reasonable opportunity to take an uninterrupted 30-minute breaks; and
(4) The employer must not impede or discourage the employee from taking their 30-minute meal break.

Only if ALL of the above are met will an employee be deemed to have taken a break. In particular, the California Supreme Court noted that the "wage order and the governing statute do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks." A copy of the decision, entitled, "Brinker Restaurant Corporation" can be downloaded here. The decision firmly establishes that the practice of employer's having a "company policy" in their employee handbook that "permits" meal breaks will not be legal if there is an actual practice of managers pressuring employees to work through their breaks.

You have the burden of proof in a meal break claim

Although the law requires employers to give you the opportunity to take a break, unlike exemptions from overtime pay where the employer has the burden of proof, claims for missed meal breaks require that the employee prove the violation. In order to prove a claim, it is best that you have some documentation regarding (1) when you missed your meal break, (2) why you missed it, and (3) who witnessed the occurrence. That is for EACH AND EVERY MEAL BREAK that you were not able to take, you should write down the date, who told you not to take it, and whether anyone else witnessed the person telling you not to take it. Vague statements such as "everyone knew the boss didn't want us taking meal breaks" without something specific that the boss said will likely not be sufficient. In addition, receiving "dirty looks" when taking a break will also likely not be sufficient. An example of a good claim would be the following record: "10/12/2012, Mr. Feeman said I needed to finish all my files before going to lunch. I did not finish until 2pm (6 hours after I started work). Jill and Joe were present when Mr. Freeman said this."

You can also prove your claim if you show that a manager pressured you into not taking a meal break. However, please remember that the burden of proof is on you, and the manager will testify that he was only pressuring you to work faster -- not to skip a break. The more you have written down about what the manager said and when he said it, the better your claim will be.

California's Meal Break Law

California labor law requires that employees periodically be allowed to take meal breaks. Specifically, the law requires:

No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. California Code of Regulations, Title 8, §11040.

As you can see, the law is fairly protective of an employee's right to take meal breaks and eliminates the illegal practices of having the employee "waive" the meal break or having the employee take the break at the end of the shift -- a meal period must be provided in the first five hours of the shift. The law provides the only circumstance where the meal period can be waived by the employee -- when the total work day is only 6 hours, and subject to a written agreement where the job does not permit a meal break.

You should note that there are very few situations where the job does not actually permit a meal break. For instance, if you are a security guard at a remote location, it would not be realistic to stop guarding for 30 minutes while you take a break. In such as a case, if you had a written agreement, you could work through your meal period. On the other hand, if you work in a small store and are the only one watching the store, this would likely not qualify. The reason is that you could simply close the store and take your meal break. It should be noted that most jobs where you work with other people who can cover your shift for 30 minutes will never qualify for the "on duty" meal period.

You should also note that there are exceptions to California's meal break law. A common exception is for certain employees covered by collective bargaining agreements. This exception is contained in Labor Code 512 and covers the motion picture, television, and construction industries as well as certain commercial drivers and security guards.

If you have questions about whether you meet the requirements for one of the exceptions, you can contact my law office.

Extra Pay When You Don't Get A Meal Break

The law requires that "If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided." California Code of Regulations, Title 8, §11040.

There is sometimes some confusion about this when you work more than 10 hours and are thus entitled to 2 meal breaks. If you don't get either of the meal breaks, you are still only entitled to 1 hours pay. That is, the violation is "per day" rather than per violation.

In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.

Statute of Limitations

The California Supreme Court just made a landmark labor law decision. In Murphy v. Kenneth Cole Productions, Inc., the Court held that payments made for violations of meal breaks are considered "wages" and subject to the 3 year statute of limitations for wages. While the Murphy Court specifically held that Meal Premiums could go back for 3 years, it is very likely that employees will be able to go back a total of 4 years under unfair competition statutes. For an excellent analysis of the labor law issues involved in Murphy v. Kenneth Cole, please see the link to my blog.

Overtime Issues Caused by Meal Premiums

If you are entitled to overtime under California Law or Federal Law, the meal premium pay would also increase your regular rate of pay for purposes of computing overtime. I have a discussion about how this type of overtime calculation works on my overtime website. An important thing to note is the the California Division of Labor Standards Enforcement ("Labor Board") does not use this calculation in determining your damages. As such, they will not award you all the damages that you could be entitled to. The Labor Board has recently taken a very hostile position towards Meal Premiums and had just recently held that meal premiums could only go back for a period of 1 year. It is fortunate that the courts overturned this erroneous thinking. For information on other problems taking a case to the California Labor Board, please see this article.

What to do

If you feel that your employer is not following the law regarding proper meal breaks for you and/or other employees in the company, you can contact my law office to for a free case evaluation. Please write in the "Additional Information" section that you feel meal breaks are not properly being given.

©2017 Michael Tracy -- Attorney at Law