Meal Breaks

Under California law, nonexempt employees are generally entitled to an unpaid, uninterrupted, duty-free meal break that lasts for a minimum of 30 minutes after working for five hours. When these breaks are not provided, or if an employer discourages taking them, it results in a violation of wage and hour laws.

Qualifying meal breaks must be provided by employers before the completion of the fifth hour of a work shift. For the duration of the break, the employee is allowed to walk away from all duties of the job position and his or her activities are no longer considered under the direction of the employer, and the employee is not considered “on-call” at this time. A meal break is to run at least 30 consecutive and uninterrupted minutes without exception.

Any employee expected to work a ten hour shift or longer is entitled to receive a second meal break which must be provided by the employer no later than the tenth hour of the shift. The second meal break is defined by the same criteria – the employee is free of his or her duties, job responsibilities, and direction of the employer for 30 consecutive, uninterrupted minutes.

In order for an employee to qualify for a meal break as per California law, the actual hours worked are the determining factor, not the shift hours. For clarity, let’s say an employee is scheduled to work an eight hour shift, but instead, only works for three of those hours. The employer is not mandated by law to provide a meal break. But if the employee does work those eight hours, the legal obligation to provide the appropriate meal breaks would apply.

If the employer fails to provide a qualifying meal break on time and the employee continues to perform his or her duties during that time, the employee is due compensation for hours worked beyond the five hours when that employee would have otherwise been taking his or her unpaid meal break, at the standard hourly rate.

An employee is allowed to waive a meal break that he or she has earned, as long as the employee’s shift is not expected to last longer than six hours. Meal breaks may only be waived after the employee and employer have agreed on the waiver prior to the start of the break. This agreement can be done verbally, the parties need not put it into writing.

For a work shift that runs longer than ten hours but will not exceed twelve hours, an employee is entitled to a second meal break. Waiving this second break can only be accomplished if both parties agree to it and only if the previous meal break of that shift was not waived. It is a violation of the law for an employee to waive both meal breaks in a ten hour shift. Waiving a meal break so that an employee works through the allotted meal break period for the purpose of leaving work sooner is not permitted under California labor law.

Any employer who attempts to discourage, obstruct, or prevent an employee from taking a qualifying meal break that has been earned for hours worked is against the law. Furthermore, if an employer attempts to incentivize, induce, or intimidate an employee to skip his or her qualifying meal break is a clear and obvious violation of California labor law.

While an employer may not interfere with an employee to prevent him or her from taking a meal break, that employer is not bound by law to ensure or guarantee the employee actually takes that meal break. Employers are obligated by law to provide meal breaks, employees are not obligated by law to take them.

Some employees in Orange County hold job positions that don’t allow them to step away from their duties for 30 consecutive, uninterrupted minutes. That doesn’t mean these positions of employment don’t provide employees with an opportunity for a meal break when applicable. It just slightly changes the definition of it.

For these employees, a meal break is provided while continuing to remain on-duty and this arrangement must be agreed upon by the employee and the employer, and the latter must permit the former to opt out of the arrangement should he or she wish to do so.

If the employee misses his or her allotted meal break for whatever reason, the employer is not bound by law to compensate the employee for that missed meal break.