Here is a recording of a webinar held on 4/12/2016 regarding Meal and Rest Periods.
What are the general requirements for meal periods? One 30-minute unpaid meal period for every five consecutive hours worked. The California Labor Code and the Wage Orders prohibit an employer from employing a non-exempt employee for more than five hours without providing an unpaid meal period of at least 30 minutes. If the employee works more than 10 hours per day, he or she must be given a second 30-minute meal period.
What constitutes a meal period? Unpaid meal periods must meet certain requirements or else they are considered an on-duty meal period, which is counted as time worked and for which the employee must be paid. The Division of Labor Standards Enforcement (DLSE) defines an “on-duty meal period” as a meal period during which the employee is not relieved of all duty, regardless of length; or a meal period that is less than 30 minutes long, regardless of whether the employee is relieved of all duty.
Meal periods need not be counted as hours worked as long as the employee is completely relieved of all duties, active or inactive, the employee is free to leave his or her workstation/place of employment and the meal period is at least 30 minutes long. For an employee’s restrictions during a meal period to be sufficient to make the period on-duty, the restrictions must be primarily directed toward fulfillment of the employer’s requirements and policies. An employee’s time must be so substantially restricted that he or she is unable to engage in private pursuits.
Waiver provisions The employer and employee are permitted to waive the 30-minute meal period in two circumstances:
When an employee’s work period for the day does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. But neither the employee nor the employer can be forced to waive the meal period. For example, if the employee wants to waive the meal period but the employer does not, then the meal period cannot be waived.
When an employee works more than 10 hours per day, the second meal period may be waived if the employee works no more than 12 hours that day, the employee and employer mutually agree to waive the second meal period and the first meal period has not been waived.
Neither the Labor Code nor Wage Orders require that either of these waivers be in writing, however it is advisable and prudent for an employer to memorialize such agreements in writing whenever possible.
On-duty meal period agreements The only way for an employee who works over six hours to avoid an off-duty meal period is through a valid on-duty meal period agreement. As stated previously, unless the employee is relieved of all duty during a full 30-minute period, the meal period is considered on-duty.
On-duty meal periods are only legally permitted under California law for an employee who works over six hours when the nature of the work prevents an employee from being relieved of all duties, the parties agree in writing to the on-duty meal period and the employee is paid for the on-duty meal period.
To be valid, the written agreement must state that the employee may, in writing, revoke the agreement at any time. Furthermore, if an employee and employer have agreed to an on-duty meal period, the employee must be allowed to eat his or her meal while performing his or her duties.
In a prior DLSE opinion letter, the owner of a fast-food restaurant asked whether a shift manager could be permitted to take an on-duty meal period. The owner argued that the shift manager needed to be available to solve problems and answer questions, and therefore could not always take a 30-minute, uninterrupted meal period. In response, the DLSE determined that under the circumstances, the shift manager could not be required to take an on-duty meal period. The DLSE analyzed the factors listed above and decided that it could not fathom why other employees in the restaurant could not function for 30 minutes while the shift manager took his break. There was no evidence that the fast-food restaurant was so inherently complex as to preclude the manager from taking a break. Moreover, there was no evidence to show that another employee could not maintain the restaurant for the brief time the manager was taking a meal break. The DLSE noted in its letter that it views a meal break as remedial, and therefore will narrowly construe any exception to this general requirement. While the DLSE’s opinion letter is not binding on Courts, it can be used as persuasive authority and also signals the position the DLSE will likely take in enforcement actions.
It is the DLSE’s position that employees cannot take two on-duty meal periods in one day.
In short, valid on-duty meal periods are very difficult to justify and operators should not implement on-duty meal periods without first consulting qualified employment counsel for guidance.
Timing of the meal period The DLSE has interpreted the Labor Code and the Wage Orders to require that the meal period be provided no later than at the end of the fifth hour worked. The DLSE, in applying this requirement, takes the position that an employer would be subject to the meal period penalty if an employee took a meal period in the sixth hour worked. In Brinker Restaurant Corp. v. Superior Court (Hohnbaum), the California Supreme Court agreed with the DLSE. Accordingly, if employee meal breaks are staggered, the meal breaks should, at the very least, be taken during or before the end of the fifth hour worked.
Unless a valid waiver is made, employers are required to provide a second meal period not less than 30 minutes in length for employees whose shifts exceed 10 hours in a single day. Some courts had opined that where a second meal period is required to begin no later than five hours from the first meal period. However, the Brinker decision rejected this argument. Employers therefore remain free to begin the second meal period at any point prior to 10 hours of work. The DLSE also requires that one rest period should precede the meal period and one should follow the meal period.
Employer obligation to enforce meal periods The DLSE and some courts argued that employers are required to “ensure” that employees actually receive their meal periods, and that an employer is liable for the meal period penalty not only if the employer prohibited the employee from taking the meal break, but also if the employer allows or permits the employee to work through the meal period. But the April 2012 Brinker decision was clear that employers “must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”
The California Supreme Court summarized the matter as follows: “An employer's duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break and does not impede or discourage them from doing so. What will suffice may vary from industry to industry … On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay …”
While the Brinker decision was certainly positive for employers, as it reinforced that employers are not required to supervise all meal period activities, employers must still be wary. Important questions remain regarding employer obligations, particularly where the Supreme Court made it clear that liability remains where an employer “impedes or discourages” meal periods, creates “incentives to forego” meal periods, or does not “relinquish control” over employees during their meal periods.
In light of the Brinker decision, employers are encouraged to have clear written policies providing for meal and rest breaks, to train supervisors regarding meal and rest break compliance, to keep accurate records of when meal breaks are taken, and to consistently provide employees with meal and rest break certification forms.
As subsequent courts define the bounds of the Brinker decision, the California Restaurant Association will send its members updates outlining any new rules on these issues.
Recordkeeping requirements The Labor Code requires that employers keep payroll records showing the daily hours worked by employees. As of Jan. 1, 2012, the code also requires that the records be kept in accordance with rules established by the commission and for at least three years. The Wage Orders explicitly state that employers must keep accurate records for each employee, including time records showing when the employee begins and ends each work period. Meal period records are also required, except during periods when “operations cease.” The required time records must show the actual hours worked by the employee, so it is not permissible for an employer to rely on work schedules posted in advance. The records also must be kept in English and in ink or other enduring form, dated with the full date, and kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. Although employers are required to maintain these records for at least three years, it is advisable to keep them at least five years due to longer statutes of limitations available to employees in California. The DLSE takes the position that if an employer fails to maintain accurate time records, the employee’s credible testimony of hours worked is sufficient to establish a wage claim. The burden is then on the employer to show that the hours claimed by the employee were not really worked.
Rest period general requirements The Wage Orders require every employer to authorize and permit all non-exempt employees to take rest periods, unless the employee’s total daily work time is less than three-and-a-half hours. The rest period must be 10 minutes of net rest time for every four hours of work time or major fraction thereof. The rest periods are counted as hours worked, so there is no deduction from an employee’s wages for the rest periods. The requirement for 10 minutes of net rest time refers to the time actually at rest or free from work. The goal is to ensure that the employee receives a full 10-minute break, excluding any time that it takes to walk, take the elevator or otherwise travel to the rest place. Because an employee is paid for the rest periods, the employer can require that the employee remain on its premises during the rest periods.
The DLSE Manual and opinion letters make clear that the 10 minutes that make up the rest period must be consecutive. In other words, the rest period should be a full 10 minutes. A succession of several small breaks taken throughout the day does not meet the rest period requirement in the Wage Order.
Restroom breaks cannot be counted as rest periods. The DLSE has clarified that allowing employees to use the restroom facilities during working hours does not meet an employer’s obligation to provide rest periods. Any separate use of restroom facilities by an employee cannot be counted as an employee’s rest period. But an employer can reasonably limit the amount of time that an employee is absent from his or her workstation. Also, the employee is not permitted to extend a rest period if he or she chooses to use the restroom during that time.
First rest period Neither the Wage Orders nor the Labor Code requires that the rest periods be scheduled. However, the first rest period must be taken during the first four hours of work. California wage law requires only that an employer “authorize and permit” all employees to take a 10 minute rest period for every four hours that the employee works. A DLSE opinion letter states, “there is no requirement that the scheduling of rest periods be fixed.” Moreover, the Wage Orders make clear that employers are not required to keep records of the rest periods of their employees. The Brinker court analyzed the timing and length requirements for rest breaks and summarized them as follows: “Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” The Brinker court reinforced that rest breaks should be made in the middle of each work period “insofar as practicable,” but rejected arguments that a rest period be given prior to the first meal period.
It is advised that employers obtain written certification, under penalty of perjury, from each employee with the employee’s signature on the document, at the conclusion of a particular pay period that identifies that the employee took each of the rest and meal breaks and if they did not, an explanation as to why the employee did not take their breaks. If an employee did not take their meal break as required the employer may discipline the employee, however the employer must also pay the missed meal period premium for that payroll period.
Rest period should not be attached to a meal period In issuing an advisory opinion on whether or not a rest period for employees subject to Wage Order 16 could be attached to the meal period, the DLSE answered in the negative. The question involved attaching the rest period to a meal period that began five hours after the employees’ start time. The opinion stated that in keeping with the general rule that the first break begin within the first four-hour work period, the rest period could not be attached to the meal period which began after five hours of work. Moreover, the DLSE stated in the same opinion letter “[a] rest period must be preceded and followed by some work period during the workday.”
The advisory letter noted that the rest period could start 10 minutes before the end of the first four hours, and then the meal period could begin right after the 10-minute break. Yet, the letter cautioned that this opinion applied only to employees covered by Wage Order 16, which governs certain on-site occupations in the construction, drilling, logging and mining industries, and may not be applicable to employees covered by other wage orders. Wage Order 16 sets forth more lenient terms under which employers can stagger rest periods when the rest periods will disrupt the operations of the business and jeopardize the product or process of work.
Waiver Unlike meal periods, the Labor Code and the Wage Orders do not have provisions concerning waivers of rest periods. Consequently, unless an exemption from the DLSE is received, the employer must comply with the rest period requirements.
Employer obligations An employer’s obligations regarding rest periods as defined by the DLSE are different than those for meal periods. An employer is merely required to authorize and permit an employee to take the rest period. Both a recent California decision and the DLSE take the position that an employer will not be held liable if it authorizes an employee to take the 10-minute breaks and the employee foregoes his or her rest period. Moreover, according to the DLSE, an employer is not required to monitor its employees to make sure that they take their full rest period. For example, if an employee is permitted to take breaks throughout the day, the employer will not be liable for an employee that decides only to take a five-minute break. To comply with its obligation, the DLSE takes the position that the employer must:
clearly communicate to the employee the authorization and permission to take the break; and
refrain from any actions that would encourage or coerce the employee to forego the rest period. Consequently, unlike meal periods, an employer is not charged with monitoring the rest breaks of the employees.
To avoid an employee claiming that he or she was not permitted to take his or her rest break, all California employers should consider distributing a memorandum to all employees (and all new employees at the time of hiring) with the following language or something similar:
All non-exempt employees are entitled to a 10-minute rest period for each four hours worked. It is the employee’s responsibility to take their rest period before the end of the fourth hour of work. If any non-exempt employee believes that he or she is unable to take their rest break or is not being permitted to take his or her rest break, that employee should contact his or her supervisor immediately.
Recordkeeping Rest periods are not subject to the recordkeeping requirement of the Wage Orders. If challenged, however, an employer that does not keep such records may find it difficult to prove that the rest periods have been authorized and permitted as required.
Premium pay for violations Before the meal and rest period premium pay discussed below was enacted, employers could allow employees to delay or waive their meal or rest periods as a matter of convenience. Some employees would skip or delay their meal or rest periods to leave work early for personal reasons. The current statutory premium pay provisions don’t allow for this flexibility. These provisions keep an employer from accommodating an employee’s request to leave early for personal matters by waiving his or her rest or meal periods.
Additional pay for missed breaks The Labor Code prohibits employers from requiring employees to work during any meal or rest period that is mandated by the Wage Orders. If an employer fails to provide an employee with a meal or rest period in accordance with the Wage Orders, the employer must pay the employee one hour of premium pay at the employee’s regular rate of compensation for each workday that the meal or rest period is not provided. The additional premium pay provision applies to an employee who is provided or takes an on-duty meal period not permitted by the Wage Orders. The hour of additional premium pay is in addition to the pay required for the time the employee worked through the meal or rest period. In a lawsuit, an employee can reach back to receive up to a maximum of four years’ worth of these additional hours of pay for missed breaks, so the potential liability is great.
The current DLSE enforcement position and the position that appears supported by at least one California court is that the employer owes an hour of pay to employees for all meal periods missed in a single day and an additional hour of pay for all missed rest periods in a single day.
Labor Code section 558 civil penalties Section 558 authorizes the Labor Commissioner to issue citations for civil penalties against an employer, or one acting on behalf of the employer, for violation of any provision regulating hours and days of work in any order of the IWC.
The civil penalty is $50 for the first violation for each underpaid employee for each pay period during which the employee was underpaid, and the amount which is sufficient to recover unpaid wages for the employee.
Subsequent violations accrue at $100 for each underpaid employee for each pay period the employee was underpaid, plus the amount sufficient to recover unpaid wages. All payments for wages are to be paid to the affected employee. All civil penalties are paid to the state.
In a December 1999 memorandum, the DLSE took the position that meal period violations will not be subject to civil penalty citations under Section 558. The DLSE stated:
“The manner in which civil penalties are calculated under Section 558 — $50 or $100 per underpaid employee per pay period in which the employee was underpaid, plus the amount of the underpaid wages — makes it clear that a violation of meal period requirements will not result in the imposition of a civil penalty under section 558, unless the meal period violation is coupled with a failure to pay the employee for the time worked during the unlawfully deprived meal period.”
As long as the employee was paid at the appropriate rate for working through a meal period, the employer will not be subject to a penalty because there was no amount “underpaid.” But if the employee works through a meal period and is not paid for the time worked, then the employee is underpaid and the employer will be subject to the civil penalty.
This logic would seem to apply equally to rest period violations. If an employee works during his or her rest periods, the employee is nevertheless compensated for that work time. No provision in either the Labor Code or the Wage Orders states that an employee is entitled to additional regular wages for the time not taken in rest. Thus, again, an employer would not be subject to civil penalties pursuant to Section 558 because there is no amount “underpaid.” Conceivably, however, the DLSE, a plaintiff’s counsel or a court may take a different position. Wage Order 16, which applies only to the construction, drilling, logging and mining industries, allows an employer covered by that wage order to not provide rest periods “in limited circumstances when the disruption of continuous operations would jeopardize the product or process of the work.” Wage Order 16 also provides that when an employee misses a rest period and cannot make it up, the employee must be compensated for the missed 10 minutes of rest time at his or her regular rate of pay within the same pay period. While Wage Order 16 is not applicable to all companies, the DLSE or a plaintiff’s counsel may use this provision to support an argument that employees that miss rest periods are owed an additional ten minutes of pay at the regular rate. Consequently, under this argument, the employee who misses a rest period is underpaid and the civil penalty applies.
Waiting time penalties Labor Code Section 203 provides a penalty for an employee who does not receive all of the wages to which he or she is entitled upon termination or leaving employment. The section provides that an employer that willfully fails to pay any wages owed to the terminated employee within the time specified in the Labor Code may get waiting time penalties. The penalty is equal to a full day’s wages for each day that the wages remain unpaid until the commencement of an action for wages or up to a 30-day period, whichever is first. The penalties accrue on a daily basis for all calendar days. Until recently, it was unclear whether the additional hour of pay for a missed meal or rest period was considered a “wage” or “penalty.” This distinction is quite significant. If the additional hour of pay is a penalty and not a wage, then waiting time penalties under Labor Code section 203 cannot be assessed. Additionally, the statute of limitations under which an employee can file a lawsuit for recovery of penalties for missed meal or rest breaks is limited to one year.
On April 16, 2007, in Murphy v. Kenneth Cole Productions Inc., the California Supreme Court decided that the remedy owed to employees who are not timely provided a full meal or rest period is a wage. This decision does not change the meal and rest period requirements, but it dramatically increases the exposure faced by employers who violate existing law and provides increased incentive to plaintiffs’ attorneys to pursue meal and rest period lawsuits. After Murphy v. Kenneth Cole Productions Inc., noncompliant employers can be liable for meal period claims for as long as four years, attorneys’ fees and interest to current and former employees. Employers also can be liable for penalties to former employees for not timely paying all wages upon termination of employment if they do not provide meal periods or pay the one-hour premium wage. When combined, these wages, penalties, interest and attorneys’ fees could exceed a million dollars for an employer with fewer than 75 employees.
Civil penalty for failing to meet the recordkeeping requirement As discussed earlier, the Labor Code requires that an employer keep records of the hours worked by its employees and any other records required by the commission to carry out the laws on wages, hours and working conditions. The Wage Orders define the specific records required by the commission and includes a directive that every employer keep accurate time records of each employee, which show when the employee begins and ends each work period, including meal periods.
Section 1174.5 provides a penalty for any employer who willfully fails to maintain the records required by Section 1174, which includes record keeping rules established in the Wage Orders. The civil penalty pursuant to Section 1174.5 is $500 for failing to keep the records. The statute does not state whether the penalty applies for each failure to keep records for each employee or if the penalty is applicable on a pay period by pay period basis.
Section 1199 provides that the Labor Commissioner may recover a fine of not less than $100 against an employer for requiring an employee to work under conditions prohibited by an order of the Commission. The employer is also subject to imprisonment for not less than 30 days in addition to or instead of the fine. Because it provides for criminal penalties, the statute must presumably be enforced by either a district attorney or the state’s attorney general. The statute is not clear on whether the penalty can be assessed for each employee made to work under conditions prohibited by the Wage Orders and if each day constitutes a separate offense.
Steps to limit exposure before litigation Currently, California case law is not favorable to employers when it comes to rest and meal break rules. Employers must exercise extreme caution when preparing and implementing meal and rest break policies. A certification that the employee has taken his of her meal and rest breaks, as discussed above, is also recommended. Given the increasing amount of litigation targeting employers’ meal and rest break practices, employers would be well advised to audit their workforce to determine whether employees are receiving and taking proper meal and rest breaks. In addition, employers should audit their record keeping practices to ensure that meal breaks are being properly recorded. Employers should also review their employee handbook and other policy manuals to ensure they conform to the state’s meal and rest break rules. If employees are taking on-duty meals, this practice should be evaluated immediately in order to determine if the nature of the business actually prevents the employee from being relieved of duty.
Employers should note how difficult it is to make such a showing and should seek legal advice before making such a determination. If the employer determines that an on-duty meal is necessary, it must enter into a written agreement with the employee and compensate the employee for that time. On-duty meal periods are rarely justifiable and are upheld under only very limited and narrow circumstances. On-duty meal periods should only be implemented after consulting with qualified employment counsel. Finally, informal practices allowing employees to skip or delay meal breaks—or to eat at their desk or workstation as they work—to accommodate employee requests or for any other reason should be reviewed. If the employer and employee agree to waive the meal break, then the employer should evaluate whether the employee falls within the circumstances under which a meal break may be waived under the law. If so, the employer and employee should sign a written waiver agreement. If the employee does not fall within one of the circumstances under which it is lawful for employees to waive their meal break, the employer must require the employee to take the meal break.
This report was reviewed for legal accuracy and updated in 2016 by Weintraub | Tobin.
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