Navigating California's Meal and Rest Break Requirements

California's detailed meal and rest break laws are a source of confusion for employers and can lead to expensive litigation if they are not properly followed.

"A lot of companies are using outdated policies," said Brian Mills, an attorney with Snell & Wilmer in Orange County. Employers need to understand how evolving laws and court interpretations on key issues can impact their policies and practices.

Employers should keep in mind that certain industries and jobs may have exceptions or different rules—so they should check the wage orders that apply to their workforce.

Here are the key points California employers should understand about meal and rest break compliance in the state.

Rest-Break Basics

California's nonexempt workers are entitled to a 10-minute paid rest break for every four hours worked "or major fraction thereof." According to the state's Division of Labor Standards Enforcement (DLSE), work periods of more than two hours are a "major fraction" of four, but a rest period isn't required if an employee's total daily work time is less than three and a half hours.

Employees have the right to take a "net" 10-minute rest break. This means employees should be taking their rest breaks near the middle of each four-hour work period, if possible, in a place away from the work area.

Many employers don't have a problem ensuring that employees get a net 10-minute break, but this could be an issue, for example, if it takes workers five minutes to get from their workstation to the breakroom, noted Pascal Benyamini, an attorney with Faegre Drinker in Los Angeles. This is because the rest period is supposed to begin when the employee is relieved of all duties.

Meal-Break Essentials

Employees must also receive a 30-minute unpaid meal break for every five hours they work. They can waive their right to take a meal break only if they work no more than six hours. A second break must be provided after 10 hours but can be waived if the first break was taken. 

Meal breaks must be taken before the end of the fifth hour of a shift. So if workers clock in at 8 a.m., for example, they must clock out for lunch by 12:59 p.m.

"Never set those meal-break times too close to the last minute," Mills cautioned.

Do employees tend to start their day a few minutes before their shift begins? Does this lead them to clock out for lunch after their fifth hour of work ends? Benyamini recommends creating a buffer of at least 10 or 15 minutes so employees don't bump up against the clock.

Additionally, employers should note that conscientious employees may want to be back at their workstations within the time allotted for their meal break, which may motivate workers to routinely clock out for less than 30 minutes if that's all the time they are given.

"Consider providing a 40- to 45-minute unpaid meal period," Mills said. That way, even if they take a little shorter break, they will still receive the required 30 minutes.

On-Duty Meal Periods

In certain circumstances, an employee may be permitted to have an "on-duty" meal period, but the time must be paid at the worker's regular rate of pay.

"On-duty meal periods are permitted by agreement under very specific circumstances," explained Rebecca King, an attorney with Fisher Phillips in Irvine.

An on-duty meal period is permitted only when the nature of the work prevents an employee from being relieved of all duty and the employer and employee agree to an on-the-job paid meal period in writing. A cashier who works alone at a coffee kiosk or a convenience store or a security guard working alone at a remote site would likely qualify.

A California appeals court recently held that the written agreement must include language explaining that the employee may revoke the agreement in writing at any time.

"If the conditions are met, you are only obligated to pay the employee for the time worked," King said. If the requirements for an on-duty meal period are not strictly met, however, it can be very costly.

Premium Pay for Missed Breaks

The California Supreme Court has said that employers must provide breaks, relieve employees of their duties during those periods and be sure not to interfere with workers' ability to take breaks. However, employers aren't required to police employees to ensure that no work is performed during that time.

So what happens when employees don't receive compliant breaks? They are entitled to one hour of pay for each day a rest-period rule was violated and one hour of pay for each day a meal-period rule wasn't followed. That means workers can receive up to two hours of premium pay per day.

A California appeals court recently considered how to calculate premium pay and held that employers must provide an extra hour of pay only at the employee's base hourly rate. So employers don't have to include additional types of compensation in the calculation—at least according to the appeals court.

Federal authorities are split on this point, King noted. The California Supreme Court has agreed to take up the issue.

Compliance Tips

Employers need to have up-to-date policies and train supervisors to apply those policies uniformly in compliance with the California Labor Code and applicable wage orders, Benyamini said. "Ensure that employees are also trained and that they follow the rules."

Employees who work more than five hours—but no more than six—may be offered the opportunity to sign a voluntary waiver if they want to skip their meal period. Employers sometimes forget employees are still entitled to that one rest break if they work at least three and a half hours, Mills observed. "Remind employees in the waiver that they are still entitled to a rest break."

He noted that employees who work between 10 and 12 hours generally don't want to stick around for their second meal period, so they may also sign a voluntary waiver for that second meal period if they meet the requirements. Remind them in the waiver, too, that they are still entitled to three rest breaks during their shift.

Employers should audit their systems for meal and rest break compliance to find out if and why there are violations, Mills added. Depending on the type of violation, companies should pay workers the premium when their breaks are missed, interrupted or otherwise noncompliant and should have separate codes for these payments in their payroll system.