California’s Basic Requirements for Daily R&R

Except for salaried, legitimately exempt-from-overtime workers, California employers must provide each employee with certain numbers of unpaid meal periods and paid rest breaks depending on how many hours that employee works in a given day.

Unpaid Meal Periods

First Meal Period: Generally, employers may not employ a worker for a work period of more than five (5) hours a day without providing the person a meal period of not less than 30 minutes. However, if the total work period in a day is no more than six (6) hours, that meal period may be waived by mutual consent of the employer and the worker. See, Industrial Welfare Commission (IWC) Wage Orders  and Labor Code Section 512.

For example, if an employee begins work at 8:00 a.m. and works an eight-hour day, he/she must start his/her single meal break on or before 1:00 p.m., the close of the fifth hour of work.

Second Meal Period: Generally, employers also may not employ a worker for more than ten (10) hours a day without providing a second meal period of not less than 30 minutes. However, if the total hours worked are no more than 12, employer and employee may waive this second meal by mutual consent as long as the first meal period was not waived.

For example, if an employee begins a 12-hour work day at 8:00 a.m., and takes his or her first 30 minute meal period between 12:30 p.m. and 1:00 p.m., then he/she must start his/her second 30 minute meal break on or before 6:30 p.m., the close of the tenth hour of work.  Returning to the job at 7:00, that person could then work the remaining two work hours of that day, through to 9:00 that evening.

Employees must be relieved of all duty, must relinquish control of all work activities, must be given the reasonable opportunity to be uninterrupted during any such provided 30-minute meal period and must not be impeded or discouraged from taking that period. Otherwise, that meal period shall be considered “on duty” and counted as time worked. An “on duty” meal period shall be permitted only where the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.

The California Division of Labor Standards Enforcement (DLSE) recognizes that employers may require that workers stay on premises for their meals.  However, the DLSE holds that in this instance, the worker is denied his/her time for his/her purposes and remains in effect under the employer’s control.  With minor exceptions for child care, foster care and residential health care workers under IWC Wage Order 5, that employer must pay such workers for their required-on premises meal periods as above.

Paid Rest Breaks

Except for those workers validly classified as salaried, exempt from overtime, California employers must also provide (“authorize and permit”) each employee paid rest breaks. The amount of rest 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 (i.e., more than two hours).  However, an employer need not provide any such paid rest time for an employee whose total daily work time is less than 3.5 hours.  See, IWC Wage Orders.

Thus:

The DLSE has interpreted “ten minutes net rest time” as a consecutive ten minutes that begins once a worker has arrived at his/her appropriate rest area away from the workstation, e.g., a break room or perhaps an outside smoking area.

The DLSE recognizes that employers may require employees to stay on premises during their rest breaks. The Wage Orders generally direct that employers are required to provide suitable resting facilities for employees during working hours in an area separate from the toilet rooms. (5th paragraph)

IWC Wage Order 5 permits a limited exception to the “fully off-duty” requirement for rest breaks.  An employee responsible for child care, foster care and residential health care may take his or her rest period while retaining general supervision of the applicable resident(s) if that employee is in sole charge of that person or those persons. However, an employer in these contexts must also authorize and permit another rest period for such a worker who had to interrupt a break to respond to the needs of residents. Wage Order 5, section 12(C).

Rest breaks are to be available in the middle of each four-hour work period insofar as practicable. Rest periods should not be combined with meal periods or other rest periods. Employees should not use rest breaks to start work ten minutes late or to end work ten minutes early.

If an employer fails to provide an employee a required meal period, rest break, or recovery period, that employer must pay that worker one additional hour of pay for each such period or break.  The employer must include this additional pay in that employee’s next paycheck.  See IWC Orders and Labor Code Section 226.7(c).

The Supreme Court of California’s Brinker decision (2012) clarified the meaning of “employer provided” meal periods and rest breaks. In essence, employers are not responsible for policing workplaces to make sure employees take their meals and rest breaks. Rather, employers are responsible for clear policies setting out the above standards and for consistently encouraging and supporting employee prerogatives to take their entitled times away from their labors during the workday.

See also,

• Brinker Decision and Rest Periods. California Employers Get a Break (May, 2012).
• Brinker: California’s Meal Break Breakthrough. Employers are No Longer the Lunch Police (May, 2012).
• Brinker: Employees May Skip Breaks. Yet Greater Flexibility Requires Greater Documentation (May, 2012).
• Brinker: Clocking In on Employee Timekeeping. Dos and Don’ts for California Employers (May,2012).
• Brinker’s New Rules for Meal and Rest Breaks. The Necessity of Management Training (May,2012).
• Brinker Case Settles for $56 Million California Restaurant Workers Settle High Profile Wage and Hour Class Action Lawsuit (August, 2014).

For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

(updated, revised September 22, 2016)