Many business owners are surprised to learn that federal law does not require either meal or rest breaks; however, many states do require either paid or unpaid meal and/or rest breaks. Summaries of state requirements can be found on the U.S. Department of Labor’s website here for meal breaks and here for rest beaks.
For employers in California, it should not be surprising to learn that California’s rules on meal and rest breaks are complicated and the generate tons of employee lawsuits. Employers should review the requirements, summarized below, to avoid meal and rest break violations, state fines, and costly litigation.
Meal Periods in California
When is the Employee Entitled to a Meal Period?
Employers must provide a meal period once within the first five hours of work, or at the five-hour mark—unless (a) the employee works a shift of no more than six hours and (b) agrees to waive his or meal period.
Additionally, employers must provide a second meal period if the employee works ten-hours—unless (a) the employee agrees to waive this meal period and (b) his or her shift is no longer than 12 hours in total. If the employer fails to provide a proper meal period, the employee is entitled to an additional hour of pay.
What is a Meal Period?
California employees are entitled to an unpaid meal period of at least 30 minutes during which they must be relieved of all duties and permitted to leave the premises. If the nature of the employees’ work precludes your company from relieving the employee of all duties—or requires that the employee must remain on-call—then the employee may take an “on duty” lunch, but only so long as (a) the employee and employer agree to this arrangement in writing, and (b) the employee is paid for the lunch period. But as a warning, it is advisable to consult legal counsel before authorizing an employee to take an “on duty” lunch.
Also, you should know that employers are not required to police conduct during a meal period. In other words, an employer needs only to instruct its employees to take their meal periods, and to encourage them to do so—making clear that they are relieved of all duties. If the employee insists on working during this meal period, it is not going to result in a violation for the employer; however, a prudent employer should actively discourage employees from working during this time.
Rest Breaks in California
When is the Employee Entitled to a Rest Period?
Employees in California are entitled to a paid ten-minute rest break in the middle of every four-hour shift, or major fraction thereof. For example, if Suzy works a six-hour shift, she should receive two paid breaks. If Suzy works a ten-hour shift, she is entitled to three paid rest breaks.
What is a Rest Period?
Importantly, the California Supreme Court recently clarified that the employee must be relieved entirely of all duties and may not be required to remain “on-call” or on-site during a break. Employers may need to reschedule breaks in order to comply with this requirement depending on working conditions. The employee is entitled to an extra hour of pay if he or she does not receive a proper break within the proscribed time.
How Employers Can Stay Out of Trouble
We often hear from business owners who are concerned about how they can prove that they are complying with meal and rest break requirements—especially for employees working outside of their office. One option may be to require employees to clock-in and out for meal periods, or to otherwise record when they are taking their breaks. Such records may prove useful in demonstrating good faith compliance. But employers can take other measures to demonstrate that they encourage employees to take required meal and rest breaks. For example, an employer may post a notice or memorandum in the workplace or spell out rules on meal and rest breaks in an employee handbook.
Note that NFIB Legal Center provides a guide to write a great employee handbook.
*This article does not provide legal advice. Employers are advised to retain counsel from a trusted attorney with experience in employment law.
