In general, California employees have a clearly protected right to rest breaks and meal time. ((Importantly, however, the employees must be “nonexempt.” Meaning, the employee's job does not fall within the “professional exemption,” the “executive exemption,” the “administrative exemption,” or the few miscellaneous exemptions out there.)) Rest breaks and meal time are important for employees to recuperate, rest, and nourish themselves during a day at work. More importantly, missing rest or meal breaks can often result in less pay than the employee should otherwise receive.

As a result of missed rest or meal breaks, many workers are owed significant sums from their employer—often without even realizing it. This blog post provides an overview of employees' rest and meal break rights. ((This blog post only applies to non-exempt employees (see the previous footnote).))

Required rest and meal breaks.

Generally, California law requires employers to offer the following rest and meal breaks: ((Labor Code, § 512.))

Rest breaks.

Rest breaks are short paid periods of personal time during the work day. They are paid because the law considers them to be time that the employee worked.

Employees are entitled to a 10-minute rest break for every 4 hours of work. However, employees whose total daily work is less than 3½ hours are not eligible for rest breaks. ((Cal. Code of Regs., tit. 8, § 11050, subd. 12(a) , which provides: "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 1/2) hours. Authorized rest period time shall be counted, as hours worked, for which there shall be no deduction from wages."))

Employees who work between 6 and 10 hours per day are given another 10-minute rest break. ((Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.)) Employees who work more than 10 hours a day, but less than 14 hours, are entitled to a third 10-minute break. ((Id.))

All rest breaks must also be uninterrupted. If the rest break is interrupted, the employee should either be paid for a full hour their regular pay rate, ((Id.; Labor Code, § 226.7.)) or be given another 10-minute rest break.

Rest breaks must be spread out according to your work schedule and cannot be combined and taken all at once. Rest breaks should be taken as close as possible to the middle of each 4-hour work period.

Meal breaks.

Meal breaks are longer unpaid periods for an employee to eat and rest. Employers cannot disturb an employee's meal break with job duties or other interruptions. ((Brinker Restaurant Corp. v Superior Court, supra, 53 Cal.4th at p. 1034.))

Employees are entitled to a meal break if they work at least 5 hours in a workday. ((Cal. Code of Regs., tit. 8, § 11050, subd. 11.)) The meal break must be at least 30 minutes. However, if the total work period for the day is less than 6 hours, the employee and employer may legally agree to give up the meal break.

If the employee works more than 10 hours per work day, but no more than 12 hours, your employer must give you at second 30-minute meal break. You and your employer may legally agree to give up this second meal break only if you did not give up your first meal break.

"On-duty" meals.

If an employee is on duty while taking their meal break, this is considered an "on-duty meal." The employee must be paid at their regular rate of pay.

Importantly, on-duty meals are permitted only if both of the following factors are met ((Cal. Code of Regs., tit. 8, § 11050, subd. 11.)):

• The kind of job being performed prevents the employee from being relieved of all duty, and
• There is a written agreement between the parties permitting an on-the-job paid meal break. The written agreement must state that the employee may revoke the agreement at any time.

Meal break deadlines.

If an employee works for more than 5 hours, their meal break must be given no later than the beginning of their sixth hour of work.

If the employee works for more than 10 hours, their second meal break should begin no later than the beginning of their eleventh hour of work.

Exception for caretakers.

Employees that take care of children, the elderly, or the disabled, are in some cases not bound by the normal rest and meal break rules. To fall under this exception, the employee must have direct responsibility for one of the following: ((Cal. Code of Regs., tit. 8, § 11050, subds. 11, 12.))

• Children who are under 18 years of age or who are not emancipated from the foster care system. The children under the employee's supervision, however, must be receiving 24-hour residential care.
• The elderly at a 24-hour residential care facility.
• The blind at a 24-hour residential care facility.
• Or the developmentally disabled at a 24-hour residential care facility.

These employees, however, are not altogether exempt from rest and meal breaks. The employee must still be given a rest break, but they may be required to remain on the premises and maintain general supervision of the residents during rest breaks, but only if the employee is in sole charge of residents. Even if this is the case, another rest break must be given to the employee if they are required to interrupt their break to respond to the needs of residents.

For meal breaks, the caretaker employee may be required to have paid on-duty meal breaks when necessary to meet regulatory or approved program standards. A few conditions for this kind of exception are applicable to employers, however, and employees often still have the option of taking a full unpaid meal break.

Common questions.

What options do employees have for skipped breaks?

Any employee who is not given a meal or rest break must be paid 1 hour of pay at their regular rate. If an employer refuses to pay this additional one hour’s pay, the employee can either file a wage claim with the Division of Labor Standards Enforcement or retain a private employment attorney to fight it.

Are employees still paid if they choose to skip a meal break?

Yes! An employee who chooses to work despite being offered a meal break is paid at their regular rate of pay. An employer, however, can discipline their employee if they violate the company's policy concerning skipping meal breaks without permission. Employer discipline can include terminating an employee from work. Also, California employment law does not require payment for overtime work of which the employer doesn't have knowledge. An employer must only pay for overtime work if they knew of or should have known about it.

How long do employees have to file a claim for missed breaks?

Legally, employees have up to 3 years from the date of the violation to file their rest or meal break claim. ((Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094; Labor Code, § 226.7.)) It However, it is best to file a claim as soon as possible to ensure any other rights are fully enforced.

Still have questions?

Petronelli Law Group, PC are always happy to answer any employment law questions you have. Please call us at (949) 954-8181 for a free no obligation consultation.