Meal & Rest Break Laws
Under California law, all non-exempt employees are entitled to meal breaks and rest breaks. Even commissioned employees are also entitled to duty-free breaks!
The right to duty-free meal and rest breaks is grounded in both the California Labor Code and the Wage Orders, issued by the Industrial Welfare Commission that are specific to each industry. Because these laws are so vigorous, and the exceptions to them so narrow, it is unfair competition to fail to follow the law regarding duty-free breaks!
Meal Break Laws
In California, your employer must authorize and provide a meal break lasting at least thirty (30) minutes that is uninterrupted and duty-free, for every five hours of work. The meal break can start no later than the top of the sixth hour of work. There are certain exceptions to this rule:
- Employees who only work six (6) hours may waive the meal period if they mutually consent with the employer to do so; and
- Employees in the motion picture industry are permitted to work for six (6) hours before the first meal break.
Additionally, you are entitled to a second meal period if you work more than ten (10) hours per day. You may waive the second meal period if you work twelve (12) or more hours and have not waived the first meal period.
Your meal break must be duty-free. This means that you are relieved of all work duties. If your employer requires you to be available to work during your meal period, you are entitled to get paid for this time.
If your employer requires you to stay on the premises during your meal break, even if you are relieved of all work duties during that time, you are entitled to get paid for your meal period. Similarly, if your employer requires you to be available by phone, or to carry a communications device during your break – then it is not “duty-free” and may violate California law.
Unless you work in certain special sectors of the economy, where the nature of your work does not permit you to take duty-free meal periods, your employer must authorize and permit you to take duty-free meal periods. While many employers have tried to push for the “nature of the work” exception – “on-duty” meal periods have rarely, if ever, been found permissible. Some exceptions include employees that work with hazardous chemicals that cannot be left unattended because of federal regulations, and other similar exceptional cases.
An “on-duty” meal period agreement is only legal under certain limited circumstances. To be valid, it must be in writing and must be revocable. Moreover, it is only legal if the nature of your work prevents you from being relieved. Very few industries have such special restrictions. Therefore, if you are being forced to work through your meal period, or if you have been asked to execute an on-duty meal period agreement – speak with a lawyer and make sure that you are not being unlawfully denied your legal right to a duty-free lunch. It could mean the difference between getting paid a premium for every missed break and getting paid nothing.
Rest Break Laws
Employees who work for more than 3.5 hours are entitled to duty-free rest breaks. The rest period is ten minutes, uninterrupted, and should be timed after a “major fraction” of the shift has been performed. For example, if your shift is only 4 hours total, then the major fraction thereof would be 2 hours into your shift – at which time, the law provides you a duty-free break where you must be relieved of all work.
The IWC Wage Orders are clear that the rest period is not to be confused with time to use the restroom. The rest period is separate and apart from time to use the toilet; an employer allowing employees to use the toilet does not relieve the employer from its duty to provide rest breaks.
While rest periods must be duty free, if they are paid, the employer may require you to stay on the premises. However, in nearly all circumstances, the employer must provide a suitable resting area, separate and apart from the toilet rooms.
Finally, all employers must provide employees with reasonable time to express breast milk and a reasonable place to do so, that is separate from the toilet facilities.
You Are Entitled to One Hour of Pay for Missed, Late, or Interrupted Breaks
If your employer has failed to authorize and permit duty-free meal breaks – including if you have been interrupted by work during your meal break, or got your lunch or dinner break later than the law requires – then you are entitled to one hour of pay.
The same applies to rest breaks. If your employer does not authorize or permit duty-free rest breaks, or provides only late times, or incomplete rest breaks – you are entitled to one hour of pay.
You Have a Legal Right to Meal & Rest Breaks
If your employer has discriminated against you in any way because you ask about not getting a meal or rest break, you can file a discrimination/retaliation claim.
If you are concerned that you are not being provided legally compliant meal and/or rest breaks, contact Vision Legal, Inc., and speak with a lawyer who understands you right to meal breaks, lunch, dinner and rest breaks.
Employees’ rights to duty-free breaks were hard-fought battles going back many years! We must all vigilantly guard these Labor Code protections, which are designed for the benefit of employees and employers alike. No one is more productive when they are tired or hungry. In many industries, tragedy results because of over-worked and fatigued workers.
Start looking out for yourself and your legal rights. Demand duty free meal and rest breaks!