Employers must provide a second 30-minute meal break when an employee works more than 10 hours. Refer to the Wage Order for your industry for any exceptions, especially if your employees' shifts are 10-12 hours long.

This page contains the following information:

• ‘Providing’ Meal Breaks
• Timing of Meal Breaks
• Recording Meal Breaks
• Waivers for Shifts Between Five and Six Hours
• Waivers for Shifts Between 10 and 12 Hours
• On-Duty Meal Breaks
• Requiring Employees Remain on Premises During Breaks
• Meetings or Trainings During Meal Breaks

‘Providing’ Meal Breaks

In Brinker Restaurant Corp. v. Superior Court the seminal meal break case, the California Supreme Court clarified that an employer's obligation is to “provide” meal breaks to employees, but not to “ensure” that the employees do no work.1

To satisfy the legal obligation to provide an off-duty meal period to your employees, you must:

• Relieves employees of all duty
• Relinquish control over their activities
• Permit them a reasonable opportunity to take an uninterrupted, 30-minute break
• Not impede or discourage them from doing so

Although employers are not required to police breaks and ensure that no work is done during meal periods, providing meal breaks requires more than simply making the meal break available. The duty to provide meal breaks is an affirmative duty on the part of the employer and employers must meet the above requirements to be in compliance.

In addition, the provide standard requires that employers relinquish control over employees during meal periods. For example, during meal periods, employees must be free to come and go as they please and be free to leave the premises. If you require employees to remain on your premises during meal breaks, you are not providing compliant breaks and may have to pay both premiums and wages to the employees for those breaks. For more information, see “Wages Required if Employees May Not Leave” on this page.

You should not discourage meal periods through pressure, incentives, ridicule or reprimand. Even informal pressure may result in a violation; if your scheduling patterns result in a general practice that makes taking breaks difficult, a court could find an informal policy discouraging meal periods and find a violation. The California Supreme Court in Brinker warned against the use of such scheduling practices.2

If you fail to provide an employee with a complaint meal break, you will owe premium pay to the employee. For example, if you discouraged an employee from taking a break or otherwise effectively prevented the employee from taking a break, premium pay is owed. However, if you provide the opportunity to take a break and an employee voluntarily chooses not to take the break, a premium is not owed. The employee would need to be paid their regular wage for the hours the employee worked when they should have taken a break but no additional premium is owed.

Employees should be instructed to inform management if they are discouraged or impeded from taking a meal break by their supervisor or anyone else. Employees should not be required to report this only to their direct supervisor, as it may be the supervisor who is discouraging them from taking the break.

• A pattern or practice of allowing employees to work through or otherwise miss their meal breaks exposes you to liability. Instead, explain to employees and supervisors what the law and your policy requires and remind them that it is the company's responsibility to ensure the law is followed.

At your discretion, meal breaks can be longer than 30 minutes. However, be aware that anything longer than a one-hour meal break can require split shift pay. For more information, see Split Shift Pay.

This chart demonstrates the number of meal breaks an employer must provide.

• For additional information on meal period requirements, review the Wage Order that covers your employees.

Timing of Meal Breaks

When providing meal breaks, you must adhere to specific timing requirements:

• The first meal break must be provided no later than the end of the employee’s fifth hour of work; and
• The second meal break must be provided no later than the end of an employee’s 10th hour of work.

Employers are often confused as to exactly what “the end of the employee’s fifth hour of work” means and exactly when the meal period must be provided: Should the meal period be provided no later than 4 hours and 59 minutes into the employee’s shift? Or at the exact five-hour mark?

The most prudent approach is to err on the side of caution and provide a meal break that begins no later than 4 hours and 59 minutes into the employee's shift. For example, if an employee begins working at 8 a.m., they should start the meal period by 12:59 p.m.; if they start working at 9 a.m., the meal period should start no later than 1:59 p.m.

The second meal period must be provided no later than the end of the employee’s 10th hour of work. Note that if an employee has already taken a half-hour first meal break, the 10th hour of work will start 10.5 hours into the shift.

In Brinker, the employees argued that meal periods had to be provided on a “rolling” five-hour basis. A “rolling basis” would mean a second meal break would be required if more than five hours remained in a shift after the time an employee finished the first meal break, even if the employee worked less than 10 hours total. The court rejected that argument, and instead held that the second meal break must only be provided if an employee works more than 10 hours in a day. As a result, if an employee takes a meal break early in a shift and then works more than five hours after the meal break, a second meal break is not required unless the employee works more than 10 hours that day.

The following chart demonstrates how to calculate meal break timing for an employee who begins work at 8:00 a.m.:

• “Late lunches,” taken after the end of the employee’s fifth hour, are not permitted. The meal period must be provided by the end of the employee’s fifth hour of work.

While a meal break typically falls approximately in the middle of a shift, “early lunches” may be allowed in certain circumstances. The Brinker court noted the general rule that, in a normal eight-hour shift, one rest break should fall on either side of the meal break. Unusual or exceptional considerations may render this general timing infeasible.

Unusual or exceptional considerations may render this general timing infeasible. In certain service industries, operations may justify departure from the general rule and it may be necessary to schedule the meal period early in the work shift. For example, a server who starts their shift at 4 p.m. may need to take an early meal break at 5 p.m., before the evening dinner rush. Even in this situation, it is recommended that employers avoid scheduling the meal period immediately after the employee begins the shift (using the above example, not right at 4 p.m. or shortly thereafter). Instead, allow a reasonable work period to occur before the meal break is taken. For more information, see Timing of Rest Breaks in Rest Break.

• Employers should consult with counsel if unusual or exceptional considerations unique to their industry seem to warrant a departure from the general rule regarding meal and rest break scheduling.

Recording Meal Breaks

The Wage Orders require that employers keep a record of start and end clock times for each meal period. It is not enough to simply show that a half hour meal break was taken during the day — the timecard must reflect the actual clock times for the meal break.

Employers must maintain accurate timekeeping records for nonexempt employees, which include the start and end time of each meal break. For more information, see Timekeeping and Recording Guidelines.

Timekeeping records should reflect the actual time that the meal break began and ended, and cannot be rounded.3 Because meal periods must be at least 30 minutes, the strict timing requirements make the imprecise nature of rounding inappropriate. Employers should ensure their timekeeping systems accurately reflect an employee's actual meal period punches and do not round those punches.

Meal periods during which operations cease are not required to be recorded on a timecard.

If an employee's timekeeping records contain a noncompliant meal break (a missed, late or short break), the employer should follow up with the employee to confirm the reason for the noncompliant break and have a process in place to document the reason why the break was not properly taken. This will allow you to account for the time for payroll purposes and pay premiums if owed.

Having a process in place to monitor for and follow up on potential violations also helps you to assess why an employee did not take a compliant meal break and what needs to be done to ensure breaks are compliant moving forward. For example,

• Is a supervisor discouraging or disallowing breaks; or
• Is the employee voluntarily choosing to work during a provided meal break and if so, what is your process to address it to avoid incurring additional pay obligations?

Employers should consider regularly auditing timekeeping records to see if there is a pattern of missed meal periods.

Waivers for Shifts Between Five and Six Hours

The employee may waive their meal period if the day’s work will be completed in no more than six hours, provided you and the employee mutually consent to the waiver. It is a best practice to have this waiver in writing, but it is not required.

• A recent case concluded that nonexempt employees’ written prospective or “blanket” meal period waivers for work shifts between five and six hours were valid and enforceable in the absence of any evidence that the waivers were coercive or unconscionable.4

In this case, the court noted the written meal period waiver was entered by mutual consent, and the employees could revoke it at any time. Additionally, the court noted that the plaintiffs didn't argue or submit any evidence suggesting the meal period waivers were unconscionable. Nor did the employees argue that the waivers had the effect of discouraging workers from taking meal periods to which they are entitled.

The court suggested that if the plaintiffs presented evidence that the agreement was unfair or that the employer coerced or pressured the employees to sign waivers or otherwise skip breaks that they were entitled to, the court may have ruled against the employer.

• Meal Break Waiver - Employee Shift 6 Hours or Less
• Meal Break Waiver - Employee Shift 6 Hours or Less - Spanish

Waivers for Shifts Between 10 and 12 Hours

When employees work shifts between 10 and 12 hours in length, they can waive the second meal break only if all of the following conditions are met:

• The total hours worked on that workday are not more than 12;
• You and the employee mutually consent to the waiver; and
• The first meal break of the workday was not waived.5

• Meal Break Waiver - Second Meal
• Meal Break Waiver - Second Meal - Spanish

It is a best practice to have this waiver in writing, but it is not required.

• Some Wage Orders contain different waiver requirements. Review the Wage Order that covers your employees.

On-Duty Meal Breaks

On-duty meal breaks are permissible only in certain limited circumstances.

An on-duty meal break must meet all the following requirements:

• The nature of the work must prevent the employee from being relieved of all duty;
• It must be agreed to in writing by you and the employee;
• It must be paid; and
• The employee must be able to revoke the on-duty meal break agreement at any time in writing (except under Wage Order 14).

Employers considering the use of on-duty meal breaks must ensure that the nature of the work truly prevents the employee from being relieved of all duties. For example, on-duty meal periods may be appropriate when employees are working with perishable products that require constant management by the employees.

On the other hand, choosing to staff only a single employee at a time may not justify an on-duty meal break. In one case, a court questioned whether an employer that chose to use a single employee staffing model could require security guards to take on-duty meal periods when it could reasonably hire a relief person. While an employer might legitimately require on-duty meal breaks “where the employee is the only person employed in the establishment and closing the business would work an undue hardship on the employer,” the court noted that the nature of the work requirement for on-duty meal breaks is a high standard to meet.6

• If all the above conditions are not met, including that the nature of the work prevents an off-duty break, an on-duty break is not lawful. Consult legal counsel before implementing on-duty meal break agreements with your employees.

On-duty meal periods, like off-duty meal periods, must be at least 30 minutes long. On-duty meal periods are an “intermediate category” between regular work and being off duty, requiring more of employees than off-duty periods but less than normal work. Employees must be afforded “30 minutes of limited duty enabling [the employees] to eat their meal in relative peace” without being rushed or pressured to eat as fast as possible and immediately return to work prior to the end of the 30-minute period.7

A legally compliant “on-duty meal break” is not a waiver of an employee's meal break. This is particularly important if employees work 10 to 12 hour shifts and want to waive their second meal break. On these longer shifts, employees cannot waive the second meal break if they waived the first meal break. However, if employees take a valid, legally compliant on-duty first meal break, they can waive their second meal break.8

• Meal Break - On Duty

Requiring Employees Remain on Premises During Breaks

If you require employees to remain on the premises during meal breaks, you have failed to provide employees with a compliant meal break and you will owe premium pay (an exception may exist for the health care industry). In addition, a court has ruled that if an employer requires employees to remain on the premises for a meal break, the employer denies employees the use of the time for their own purposes and because the employee remains under the employer's control, the meal break must be paid.9

On the other hand, another court found that a fast food restaurant did not violate California meal break laws when it offered employees a food discount only if the food was eaten on site. The court concluded that the restaurant relieved its employees of all duties during the meal break and exercised no control over their activities, even though it required employees to remain on site to get the discount, because employees did not have to buy the discounted meal - it was entirely optional and voluntary. The discount was given as a benefit; if the employee did not want to stay on site, they would not purchase the discounted meal.10

In most situations, the courts and Labor Commissioner are likely to rule that wages are owed any time the employee is under your control, including during meal breaks.

If you require that employees eat on your premises, you must designate a suitable place for them to do so.11

Meetings or Trainings During Meal Breaks

Employers may hold meetings or trainings for employees during employees' typical meal break times. However, even if you provide food during the meeting or training, the meeting does not count as a valid meal break. Rather, it is considered work time. Employees must be paid for the time spent in the meeting and you will owe one hour of premium pay to each nonexempt employee who is not able to take a compliant meal break either before or after the meeting or training. For more information on the premium, see Premium Pay for Meal and/or Rest Break.

You can avoid owing premium pay if you allow employees the opportunity to take an off-duty meal break of at least 30 minutes either before or after the meeting, provided that the meal break is timely (it must start no later than 4 hours and 59 minutes into the employees' shift).

1. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012)