Most employees in California are allowed to take an unpaid thirty (30) minute meal break and ten (10) minute paid rest breaks throughout the day. In general, employees are not required to be paid for their meal break(s). However, employers are required to pay employees for the mandatory ten (10) minute rest breaks. There are a lot of deviations, so continue reading for additional information on what breaks you are allowed to take in California and whether or not your employer is required to pay you. Although California law does not generally require paid lunch breaks, you could be entitled to additional pay if you are not allowed to take your unpaid meal breaks or paid rest breaks.
To understand what breaks you are allowed, you must first understand what type of employee you are. Employees basically fall into two categories: exempt and nonexempt.
Employers do not have to pay exempt employees for overtime worked or for meal breaks, subject to certain exceptions (discussed below). In order to be considered an exempt employee, employees must meet certain criteria as outlined in the California Labor Code, including:
If an employee meets all three of the criteria above, their employer can classify them as exempt and does not have to pay them for breaks and overtime. However, the employer must still give exempt employees an unpaid meal break of at least thirty (30) minutes, if they work more than five (5) hours on any given day, unless they work for six (6) hours or less. The employer must give them two unpaid meal breaks of at least thirty (30) minutes each, if they work more than ten (10) hours on any given day.
There are other types of exempted employees, including employees in the computer software field who are paid on an hourly basis, and qualified inside or outside salespersons. Some employees are classified differently, and other employees are only partially exempt. If you are not sure how you are classified under the California Labor Code, to make sure you are being treated fairly.
Exempted employees must meet the criteria listed above: minimum salary requirements, specific primary work duties, and the ability to use discretionary judgment. Employees are considered nonexempt, if they do not meet these exceptions. Most workers in California are nonexempt employees.
Nonexempt employees, like exempt employees, qualify for an unpaid and uninterrupted thirty (30) minute meal break, if they work more than five (5) hours on any given day, unless they work for six (6) hours or less. The employer must give them two unpaid meal breaks of at least thirty (30) minutes each, if they work more than ten (10) hours on any given day.
In addition to qualifying for unpaid meal breaks, nonexempt employees also qualify for overtime and paid rest breaks. Employers are required to give nonexempt employees a ten (10) minute paid rest break for every four (4) hour period worked. If an employee works three and a half (3 ½ ) hours or less, the employer is not required to give nonexempt employees a paid break. The law requires that these breaks be taken in middle of each work period when at all practicable.
First, make sure you are not waiving your right to your breaks. If your employer and you agree, you may waive your right, by written mutual consent, to your first meal break. However, you are still required to take at least one thirty (30) minute unpaid meal break, if you work more than ten (10) hours, but less than twelve (12) hours. If you work more than ten (10) hours, your employer is required to offer you two (2) unpaid meal breaks. If you work more than twelve (12) hours, then you are required to take two (2) unpaid meal breaks and cannot waive your right to either one. You cannot waive your right to your paid rest break(s).
Under California law, if your employer does not give you the required meal or rest breaks, they must pay you a penalty equal to an extra hour of work. This means if they do not give you both your required unpaid meal break and required rest break(s), they are required to pay you for two (2) hours extra - an hour for the unpaid meal break and an hour for the paid rest break(s).
However, employees do not receive an extra hour of pay for each rest break or meal break not given. For example, if you work a twelve (12) hour shift as a nonexempt employee, your employer is required to give you two (2) unpaid meal breaks. If you do not agree to waive your right to either of your meal breaks and your employer does not allow you to take either one, you would be entitled to one extra hour of pay. You would not be entitled to one extra hour of pay for each unpaid meal break your employer disallowed, but one hour for each work day.
If in the same example above, your employer also did not allow you to take your paid rest breaks, you would be entitled to another extra hour of pay: one for the disallowed unpaid meal breaks and one for the disallowed paid rest break(s). Whether you miss one rest break or both rest breaks, you would only be entitled to one hour of extra pay.
Nonexempt employees must be given adequate uninterrupted meal breaks. However, California law does not require that these meal breaks be paid, unless you are not allowed to leave your worksite for your meal break and/or are required to continuing working during your meal break.
There are special laws that apply to nonexempt employees. For example, the requirements to pay overtime, receive rest breaks and meal breaks, and track hours worked. Employers are not required to pay exempt employees overtime or paid rest breaks. However, exempt employees do qualify for unpaid meal breaks. Additionally, California law applies differently to different industries. For example, those employed in public agencies, healthcare or movie industries, or by unions, just to name a few, each have their own unique set of rules.
If think you have not been given your legally required meal or rest breaks or if you have questions about your exempt status, contact us or call (949) 954-8181 for a free consultation.
Labor Code, § 515(a) Labor Code, § 515(a) “customarily and regularly exercises discretion and independent judgment in performing those duties”
Labor Code, § 515(a) “earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment”
Labor Code, § 512(a) “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”
State of California Department of Industrial Relations Website, Exemptions from the overtime laws https://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm
Labor Code, § 512(a) - See above
Cal. Code of Regs., Title 8, § 11040(12)(A) “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”
Labor Code, § 512(a)
Cal. Code of Regs., Title 8, § 11040(11)(B) “If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”
Cal. Code of Regs., Title 8, § 11040(12)(B) “If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”