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by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
As an employer, do you know how to provide compliant meal breaks to your employees? Or when employees can legally waive a meal break? Or whether you can require employees to stay on site during a paid rest break?
If you’re unsure how to answer those questions, you’re not alone. Meal and rest break compliance can be challenging for California employers, and missteps can be costly, potentially opening the door to administrative claims and lawsuits.
This overview of California’s meal and rest break requirements offers a roadmap for navigating this difficult compliance area.
Remember that the rules regarding meal and rest breaks apply only to nonexempt or “hourly” employees. These rules do not apply to employees who meet the salary and duties requirements of one of California’s exemptions.
In addition to the general meal and rest break requirements discussed below, certain industries — like residential care, ambulance and security service industries — have industry-specific exceptions. Employers should always review the applicable California Wage Order to determine whether any exceptions or unique meal and rest break rules apply to their business.
California law requires that employers provide nonexempt employees with a timely, uninterrupted and unpaid meal break when employees work shifts greater than five hours and a second meal break if they work more than 10 hours.
“Providing” a meal break to employees means that employers must:
Employers should ensure that they are taking the above steps to provide employees with their meal breaks and are not doing anything to prevent breaks from being provided.
The law also imposes timing requirements for meal breaks. Meal breaks must be timely, meaning they must begin before the end of the employee’s fifth hour of work. For example, if an employee begins their workday at 8:00 a.m., they need to start their meal break by 1:00 p.m., because they cannot work more than five hours without taking their meal break. To minimize risk of a late break, employers should ensure employees clock out for their meal break no later than four hours and 59 minutes into their shift. If the employee’s workday exceeds 10 hours, they must be provided with a second meal break that begins before the end of their tenth hour of work.
Meal breaks are unpaid, and employers must maintain accurate records of employees’ meal breaks. Employees should be required to record the actual start and end times — without rounding — for their meal breaks in their employer’s timekeeping system. A common issue that arises with meal break compliance is waivers. Employees can legally waive a meal break in only two situations:
Both types of waivers must be voluntary; employers cannot require employees to waive their meal breaks. Although the law does not require a written waiver, obtaining one that both parties sign is a best practice, because it confirms both parties agree to the waiver, and that the waiver is voluntary and can be revoked at any time.
A recent case provided clarity on the use of these waivers, holding that prospective, or “blanket,” written waivers that applied to all shifts employees worked between five and six hours were valid and enforceable in the absence of any evidence that the waivers were coercive or unconscionable.
California law also requires that employers authorize and permit employees to take 10-minute paid rest breaks for every four hours worked or “major fraction thereof” — which is anything more than two hours. Employees who work shifts of 3.5 hours or less are not entitled to a rest break.
Rest breaks are paid; employees remain on the clock and are paid for their rest breaks.
Employees are entitled to rest breaks that are a “net” 10 minutes. That means the break begins when the employee reaches an area away from the workstation that is appropriate for rest.
Keep in mind that most California Wage Orders require employers to provide suitable resting facilities that are available for employees during working hours. For example, if employees must travel three minutes each way from their workstation to the employer’s breakroom, then their rest break begins when they reach the breakroom, and the six minutes spent traveling to and from the breakroom is not counted as part of their “net” 10-minute rest break.
Like with meal breaks, employers must provide employees with an uninterrupted rest break, relieving employees of all duty and relinquishing control over employees during it. Although some Wage Orders have limited exceptions, generally employers cannot require employees to remain on-call during rest breaks.
Meal breaks must be taken by the end of the fifth hour worked, and rest breaks generally should be taken in the middle of each work period. For example, in an eight-hour shift, an employee takes a meal break by the end of the fifth hour of work and two rest breaks, one in the middle of each work period before and after the meal break.
Employees must be allowed to take their meal and rest breaks wherever they please, including away from the employer’s worksite. Unless a Wage Order specifically provides otherwise, employers cannot require employees to remain on site during breaks.
If an employer does not provide a compliant meal or rest break to an employee, the employer will owe the employee a meal or rest break premium. This premium is one hour of pay at the employee’s regular rate of pay for each non-compliant break, with a maximum of one hour of premium pay owed for all meal break violations and one hour owed for all rest break violations in a day.
When meal and rest break premiums are paid, they must be reflected on the employee’s wage statement.
Meal and rest break compliance has always been important in California. Failing to properly provide breaks can expose an employer to administrative complaints, Labor Commissioner investigations and civil lawsuits, including class actions and Private Attorneys General Act (PAGA) claims. In addition, the 2024 PAGA Reform makes compliance even more critical because employers can now limit potential penalties in PAGA claims if they take “all reasonable steps to be in compliance.”
Employers can consider taking the following steps to improve meal and rest break compliance: