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What Break Periods Am I Entitled To? (2017)

california meal breaks, california rest breaks, break lawsUnder California law (which is much more generous to employees than federal law), if you are a non-exempt worker, you are entitled to meal and rest breaks: a 30-minute meal break if you work more than 5 hours in a workday, and 10 minutes breaks for every 4 hours you work. There are other requirements though. If your boss doesn’t comply with break requirements, they are required to pay you one extra hour of regular pay for each day on which a meal break violation occurred, and another extra hour of regular pay for each day on which a rest break violation occurred.

For the nitty gritties, see below:

Rest Breaks

  1. Your boss must give you a rest break of at least 10 consecutive minutes that are uninterrupted.
  2. Rest breaks must be paid.
  3. If you work at least 3.5 hours in a day, you are entitled to one rest break. If you work over 6 hours, you are entitled to a second rest break. If you work over 10 hours, you are entitled to a third rest break.
  4. Rest breaks must to the extent possible be in the middle of each work period. If you work 8 hours or so, you should have a separate rest break both before and after your meal break.
  5. Your boss may require you to remain on work premises during your rest break.
  6. You cannot be required to work during any required rest break. [Cal. Lab. C. 226.7]. BUT, you are free to skip your rest break provided your boss isn’t encouraging or forcing you to.

Meal Breaks

  1. If you work over 5 hours in a day, you are entitled to a meal break of at least 30 minutes that must start before the end of the fifth hour of your shift. BUT, you can agree with your boss to waive this meal period provided you do not work more than 6 hours in the workday. You can also agree with your boss to an on-duty meal break which counts as time worked and is paid.
  2. If you work over 10 hours in a day, you are entitled to a second meal break of at least 30 minutes that must start before the end of the tenth hour of your shift. You can agree with your boss to waive the second meal break if you do not work more than 12 hours and you did not waive your first meal break.
  3. You must be allowed to take your meal break off work premises and spend your break how you wish, since it is off the clock.
  4. You cannot be required to work during any required meal break. [Cal. Lab. C. 226.7].
  5. As of 2012, your boss has an affirmative obligation to ensure that breaks are made available to you but the actual taking of meal breaks is left to the employee. In other words, you are responsible for “breaking” yourself.

Note, rest and meal breaks are supposed to be separate, they should not be combined. Your boss cannot give you a single 1-hour break and say that that counts as all of your meal and rest breaks.

Keep in mind, there are many exceptions to the above for certain industries, such as the construction, healthcare, group home, motion picture, manufacturing, and baking industries.

If your employer is violating your rights to meal and rest breaks, you should contact a lawyer right away as you may be entitled to receive a penalty of 1 hour wages per day you were denied any rest breaks, and an additional penalty of 1 hour wages per day you were denied any meal breaks (for a maximum penalty of up to 2 hours wages per day). Your claims are subject to strict filing deadlines. For meal and rest break violations, the filing deadline is usually considered to be 3 years thanks to a recent California Supreme Court decision. [Murphy v Kenneth Cole Productions, 40 Cal.4th 1094 (2007)], but in certain cases, a 1 year filing deadline could apply.

Keep on taking those breaks!

Photo courtesy of cjmellows

1,602 Comments

  1. Leo on November 22, 2017 at 3:15 pm

    I work in a building where employees work around the clock. Is it wrong for the employee to not have the 30 minute meal break, off the clock, if the employee is in a Union and the signed Union contract states that an employee “shall work a shift of eight (8) hours within a period of eight (8) hours, which shift shall include his/her lunch period on the employer’s time”.

  2. kristi del toro on November 21, 2017 at 6:12 pm

    hello,
    I work 10 hour shift 6 to 5 one break at 8, 8:10, 8:30, then 1 hour lunch at around 10-10 :15 if its busy i would get a mandatory 30 or 45. the tow more breaks one at 1 then one at 3.
    what do you think . it does not sound in line with your scenario. Oh I work in California

    • kristi on November 21, 2017 at 7:16 pm

      That is one break in the am around 8 or 830 or 810 or 845

      • Eugene Lee on November 22, 2017 at 9:40 am

        If you work a 10 hour shift with a 1 hour lunch, then you are on the clock for 9 hours. That entitled you to two 10-min paid rest breaks. The paid rest breaks must be (usually) be separate, and must be on either side of the unpaid lunch break. So according to what you wrote, it seems you are getting your legally-mandated lunch and rest breaks.

  3. Shih on November 21, 2017 at 12:09 pm

    If I work from 8am to 2:15pm, my shift is 6.25hrs long. If I take my 30-min unpaid meal break in between my shift, doesn’t that make my shift only 5.75hrs? And do I still qualify for 2 paid rest breaks? Or just 1?

    • Shafiq on November 21, 2017 at 3:13 pm

      I work 730-3 everyday. No meal break and only get paid the hours worked for example 7.5 hrs x 16hr. No overtime. No employee takes meal breaks and we don’t get paid extra. Is that legal

      • Eugene Lee on November 22, 2017 at 9:37 am

        Shafiq, as you seem to suspect, the answer is: no, that’s not legal. Even though are paid for working through lunch, the employer is on the hook to pay you an extra 1 hour per day meal break premium because you were denied a lunch break. You should bring this up to your employer (in writing), and if they don’t either 1) pay you the daily 1 hour meal break premium or 2) start giving you your lunch break, then consider filing a labor board complaint. https://calaborlaw.com/complaint/

    • Eugene Lee on November 22, 2017 at 9:35 am

      Shih, good questions. You are correct, with the 30 min meal break, you are on the clock for only 5.75 hours, thus you qualify for only 1 10-min paid rest break.

      • Shih on November 22, 2017 at 9:49 am

        Thank you so much for clarifying, Eugene!

  4. Seth on November 19, 2017 at 12:58 am

    my job requires me to work the full 5 hour shift and get my break before i clock out for the day. its annoying because my shifts are ususally 4pm-9pm. then at 9 i have to take my break and leave about 9:10 and my ride is always waiting

    • Eugene Lee on November 19, 2017 at 3:58 pm

      That is very likely illegal. The rest break must be in the middle of your work shift to the extent practicable. Unless your employer has a compelling reason for putting your break at the end of your shift, that is a denial of your rest break.

    • Christine Huff on November 21, 2017 at 9:35 pm

      I work 10 hr. I get 30 lunch 2 15min break but the break are on my time. I work 5 to 4. And get paid for 10 and thete for 11 hour 1 30m lunch and twp 15. Why do I have to pay for my breaks in cal.? Is this right?

      • Eugene Lee on November 22, 2017 at 9:28 am

        No that’s not legal. According to what you wrote, you should be credited with 10.5 hours on the clock each day, not 10. The two rest breaks are supposed to be on the clock and paid. You should consider filing a labor board complaint. https://calaborlaw.com/complaint/

  5. marie on November 17, 2017 at 7:10 pm

    Hello!
    I work in a store where I am the only person there. I work 6.5 hour shifts. I dont take breaks because I dont feel that I need them. When I feel like I need them I will lockup shop for 10 minutes but this is rare. I eat while I am working so I dont take 30 min breaks either. My employer has left it up to me to decide. Is this ok? I dont want to get him in trouble. Other employees follow what I do as well.
    Thanks for your input on this!
    Marie

    • Eugene Lee on November 18, 2017 at 2:40 pm

      Marie, it’s your break right to assert. If you want to skip your breaks, the employer won’t be on the hook for that. Of course, if your boss orders you to take your breaks and you refuse, your boss has the right to discipline you or write you up.

  6. Zoë on November 16, 2017 at 12:57 pm

    I work in a restaurant and my shift usually lasts 6 hours and 40 min. My boss won’t hire another person to help out so I often won’t get my break unless it gets slow. With the colder season we get really busy, so I’m on my feet non-stop, to the point where I barely have moment to drink some water. Sometimes I’ll start my shift with my boss saying “No 30 today, maybe only 10, is that okay?” I only have one other server to help me, and sometimes my boss will help serve when it’s busy, but it’s not enough. I’m also considered part time, but have been working over 40 hours the past 4 paychecks. How do I know I’m getting paid overtime?

    • Laura muniz on November 16, 2017 at 4:01 pm

      I just started a job in which I really like I already have 3 break penalty, one for late lunch after 5 hours…and two for early clock in from break..I was told after five penlty I can be let go…is this true?…is there a foem that I can sign if I know There will be a break penalty, too wave it off?

      • Eugene Lee on November 16, 2017 at 9:57 pm

        Hi Laura, it is the employer’s right to set your work schedule, including break schedules. They have the right to issue discipline, including and up to termination, if you don’t follow those schedules, including clocking out and in on time. If you really want to, you can ask the employer to agree to a waiver of your meal break, but that is an option only if your work shift does not exceed 6 hours. Also, your employer must agree to it. My advice is: be extra vigilant about taking your breaks on time and for the appropriate length.

    • Eugene Lee on November 16, 2017 at 10:05 pm

      Hi Zoe, first you can’t agree with your boss to “No 30 today” because your work shift exceeds 6 hours. A lunch break waiver is therefore not possible. Second, your boss telling you “maybe only 10” is a violation because rest breaks cannot be waived. In short, your boss is denying you both meal and rest breaks, which entitles you to a penalty of 2 hours of wages per day that you aren’t able to take your meal and rest breaks.
      As for part-time versus full-time, California labor laws do not recognize either. They have no legal significance and are creations of the employer to help them distinguish employee benefit and privilege levels.
      And as for overtime, there are three types in the State of California:
      1. daily overtime is all time worked in excess of 8 hours in a work day (as defined by the employer)
      2. weekly overtime is all time worked in excess of 40 hours in a work week (as defined by the employer)
      3. 7th day overtime is all time worked on the seventh day if you work every day of a 7 day work week (as defined by the employer).
      Since you are working over 40 hours a week, that entitles you to weekly overtime for all hours worked over 40 in a week. But check to see if you also qualify for the other types of overtime.

  7. Chris on November 14, 2017 at 12:12 pm

    The other day I worked a 6+ hour shift so I took my usual 30min break. I normally spend it outside, but now that it’s getting colder, I spent the last half of my break inside. I work in a store where we do not have an employee break room, so I sat on a bench in a public area of the store (not in storage or an employee area). One of my coworkers saw me and told me that I wasn’t allowed to sit on the bench and I needed to leave the store on my break. I know employees are allowed to leave the premise, but are they required to? I can understand not being in an office or a restricted area on my break, but I was in a public space. I wasn’t being distracting or in the way. I was just sitting.

    So I have a few questions related to this experience:
    -Is an employee required to leave the premise during an unpaid break? (even if they are in a public area)
    -If employees are allowed to stay on the premise during their break, where are they allowed if there is no break room?
    -Are working employees allowed to converse with employees who are on their break? (provided they are still performing all their duties effectively)
    -Are employees required to change out of their work uniforms during unpaid breaks?

    Any help is appreciated!

    • Eugene Lee on November 14, 2017 at 6:10 pm

      An employer has the right to prohibit the taking of meal breaks in the store, even in the public areas of the store. They could have a number of legitimate reasons for doing that, including maintaining the appearance of the store to customers. They just can’t prevent you from leaving the store for meal breaks. So yes, the employer could require you to leave the store for meal breaks, so long as they aren’t targeting you or singling you out because of a protected characteristic (like your race, skin color, sexual orientation, marital status, religion, etc.).

      If an employer allows you to stay in the store for meal breaks, they don’t have to provide you with a dedicated eating area. That only applies in certain specific industries where the employer requires employees to eat without leaving the premises.

      As for your other questions, that is up to the discretion of your employer. So long as they aren’t singling you out for illegal reasons or protected characteristics. There are certain “donning and doffing” laws that could apply regarding your question about changing of uniforms, but more information would be needed. I hope that helps!

  8. Steve A. on November 14, 2017 at 11:56 am

    If an employee works from 3p-11p on a straight 8 hour shift in an industry that requires someone being here at all times, what are the breaks and lunch requirements. The employee takes multiple smoke breaks, bathroom breaks, has a lot of down time, etc. but physically cannot leave the property. So far, we have been paying the employee the straight 8 hours. After 5 or 6pm in this business, all goes quiet and the employee eats and watches TV.

    • Eugene Lee on November 14, 2017 at 6:00 pm

      An employee must be permitted to leave the premises on their meal breaks. In an 8 hour shift, employees are entitled to one 30-min unpaid meal break and two separate 10-min paid rest breaks, one before and one after the meal break. If there is a lot of downtime, those will generally be deemed to be rest breaks, with the exception of bathroom breaks which can never be considered rest breaks.
      Even though you are paying for the full 8 hours, the fact that the employee is unable to leave the premises during their meal break means they have in effect been denied their meal break, in which case you would be on the hook for paying an additional 1 hour of meal break premium per day. I.e., you would need to pay them for 9 hours each day.

  9. Georgia on November 14, 2017 at 11:11 am

    Are employees required to take exactly 30 minutes lunch break? I’m a full-time employee. Am I able to clocked back in early from lunch and start working after 20-25 minutes of lunch break? I mean, it’s my choice not to take the full 30 minutes. Is this a violation?

    • Eugene Lee on November 14, 2017 at 5:56 pm

      If it’s your choice, and not because of encouragement or pressure from your employer, then there is no violation. However, your employer still retains the right to make you take the full 30 minutes if they wish.

  10. Cynthia on November 13, 2017 at 2:51 pm

    Hello so today i work from 1:30 to 9:30pm. Due to coverage i have to break from 2:30 to 3. I will be working 6.5 hours on my second half to my shift. Does my job need to pay me a meal premium?

    • Eugene Lee on November 13, 2017 at 11:50 pm

      Since you work an 8 hour shift, you are entitled to two separate 10-minute paid rest breaks, with one 30-minute unpaid meal break between the two rest breaks. So said the California Supreme Court in a 2012 decision called Brinker v. Sup. Ct. In your case, you are taking the meal break only an hour into your shift. That does not entitle you to a second meal break, however. So the answer is: no, you aren’t entitled to a meal break premium, at least based on the situation as you have described it.

  11. Adrian Bernal on November 13, 2017 at 10:15 am

    Hello, I work 12 hours a day 4 days a week from 5am-5pm and for the past about 4 months or so I haven’t been getting a lunch and/or break at all. I do work in a very active workplace and without a break, it truly is stressing. Is it legal to go that long without at least a restroom break?

    • Eugene Lee on November 13, 2017 at 11:55 pm

      I think you’re confusing things a little. Trips to the restroom must not be restricted as that is a health and human safety issue. Restroom trips do not constitute rest breaks. Second, since you work 12 hour shifts, each day you should be receiving:
      – TWO 30-min unpaid meal breaks
      – THREE 10-min paid rest breaks
      If you aren’t receiving those rest and meal breaks, you should bring your concern IN WRITING to management. If they don’t fix the problem, you should consider filing a labor board complaint.

  12. Briana on November 12, 2017 at 9:35 pm

    The company I work for currently has me working 8 hours a day with a 30 minute lunch period and one 10 minute break after my lunch. I was taking a second 10 minute break before my lunch but was told I was not allowed to. The reasoning I was given is that I only worked 3.75 hours before lunch and not a full 4 hours therefore I do not receive a break before my lunch. Am I correct in believing that this is wrong according to what I read above? Should I be entitled to have a break in the morning as well as in the afternoon since my overall time spent working amounts to 8 hours? I’m an hourly employee so I’m not sure if this changes things. I just want to be clear on what I’m rightfully entitled to before I bring anything up. Thanks

    • Eugene Lee on November 14, 2017 at 12:00 am

      Briana, the California Supreme Court spelled this out in 2012 in a decision called Brinker v. Sup. Ct. In an 8 hour shift, you should receive TWO separate paid 10-min rest breaks, with ONE unpaid 30-min meal break in between the two rest breaks. The employer has discretion to set your work schedule, including your break schedule. However, if they are limiting you to only one rest break, that is a violation. Unlike meal breaks, rest breaks cannot be waived. You should bring this to management’s attention, preferably in writing. If they don’t fix the problem, you should consider filing a labor board complaint.

  13. Susanna Lopez on November 11, 2017 at 11:58 pm

    Hello. I work at a restaurant where we make minimum wage. We have closing shifts that are scheduled from 5:00-10:30. During those shifts I am only given a ten minute break period even though we sometimes stay past 10:30. Today I started at 4:45, stayed till 11:30, and only recieved a 10 minute break. Am I right in concluding that this was a violation on my employers part?

    • Eugene Lee on November 12, 2017 at 2:22 pm

      Yes. Even if you waived your meal break, a waiver is not effective if your shift exceeds 6 hours. Also you get a 10 minute rest break for every 4 hours worked.

  14. Joseph on November 11, 2017 at 7:58 pm

    Hi, I work for a company that has a policy that states if you work 8 hours in a day you “MUST” take a 1 hour lunch break. I tell them That I would like to work for 8 hours and take only a 30 minutes lunch break and leave early. They tell me no and show me their policy from 2011 that states 1 hour must be taken. Am I right or wrong in this matter?

    • Eugene Lee on November 12, 2017 at 2:24 pm

      Sorry the employer is right. At will employers have the right to set or change an at wil employee’s work schedule.

      • Joseph on November 12, 2017 at 4:11 pm

        Thank you for the prompt response.
        Another question I have is, For 8 hours of work, is the required LUNCH break 1 hour or 30 minutes? We also have two paid for 15 minute breaks through the day. Everywhere I look only says that 30 minutes lunch is required for over 5 hours of work.

        • Eugene Lee on November 13, 2017 at 11:58 pm

          A lunch break must be, at minimum, 30 minutes. But the employer does not need to give you more than 30 minutes for meal breaks. If you work 5 hours, you are entitled to one meal break of at least 30 minutes. If your employer is giving you one hour for lunch, they are going above and beyond the legal minimum. Note, the lunch break should not normally exceed 1 hour. If it does, depending upon your rate of pay, there may be a split shift violation.

  15. Brayan on November 9, 2017 at 11:21 pm

    Hello, I have a question what happen when I work around 7 or 7:30 hours I do get a 30 minutes break then after they made me clock out for an hour. Afterwards I came back to work another 3 more hours. What am I entitled to regarding rest breaks? And why they do that for? By the way I work on a restaurant

    • Eugene Lee on November 11, 2017 at 9:27 am

      Hi Brayan, that sounds like it might be a split shift violation. But it depends entirely on: 1. how much your pay rate is (versus minimum wage) and 2. how many hours in total you worked that day. Split shift calculations are pretty complicated. Please feel free to give us a call to discuss at (213) 992-3299.

  16. Sandra Pena on November 9, 2017 at 1:40 pm

    I work for a franchise store and most employees are working 10 AM- 7PM and next week they said we must take a 2 hour lunch break. Is that legal since it is a 9 hour shift?? Its a authorized dealer, small buissnes but big name company. Is this right?

    • Eugene Lee on November 9, 2017 at 2:02 pm

      That really depends on your rate of pay. If your rate of pay is somewhat close to minimum wage, that is very likely a split shift violation, and you would be entitled to claim for a split shift premium. But making the determination would really depend on the size of the gap between your payrate and minimum wage in your place of work. Feel free to give us a call to talk it over at (213) 992-3299.

  17. Marsha on November 9, 2017 at 3:52 am

    I am a union contracted California state Registered Nurse. I am being forced to not take my rest or meal breaks all the time because of staffing shortages! My supervisors and managers and director have done nothing to fix the problem. Yes they are paying all of us for our missed breaks but we want to take our breaks and rest periods we need them to make sure we don’t get burnt out and make a mistake and lose a patient and/or our licenses! Can we do anything? Our union has filed out paper after paper requesting they hire more staff but they have done nothing! We fear it will take something bad to happen for them to see that we have a real problem! We are all exhausted! Calling in sick some days just because we don’t want to be forced to work our whole shift with no breaks!!!

  18. C.Lann on November 8, 2017 at 7:08 pm

    I am scheduled to work from 8pm to 8am. My co. clocks us out at 11:59pm and back in at 12:00 am. Therefore we dont get overtime pay. Im in Calif. Isn’t this illegal? If im working at 12 hr shift aren’t i entitled to overtime?

    • Eugene Lee on November 8, 2017 at 7:14 pm

      I have some bad news for you. The employer has the right to define the start and end of the workday (and the workweek too). Of course, the employer must be consistent about it, and must notify employees as well. A midnight cutoff for the workday is pretty common, and is the default according to the California labor board. That is exactly what is happening in your case. The employer is clocking you out at 11:59 pm because that is when the workday ends. Then you are clocked back in at 12 am because 12 am is the time the employer has defined as the start of a new workday. Given the 12 am designation, your 12 hour shift is falling on two separate workdays of 6 hours each. Hence, no overtime for you.

      Please keep in mind that there are other forms of overtime that you might still qualify for.

      1. weekly overtime – if you work more than 40 hours in an employer-defined workweek, that is weekly overtime
      2. 7th day overtime – if you work 7 days in a row in an employer-defined workweek, all time worked on the 7th day is overtime (first 8 hours) and double time (everything past the first 8 hours).

      If you think you qualify for the other types of overtime, be sure to bring it up to your employer in WRITING. If they don’t fix it, consider filing a labor board complaint.

  19. Aaron S. on November 8, 2017 at 3:20 pm

    Hello,

    Would a county agency also adhere to the same guidelines? My agency recently implemented a mandated lunch schedule where all lunches begin at 4.5hrs into the shifts. They stated the reasoning was that Cal-OSHA’s requirements required that we all go BEFORE our 5th hour. I have argued that we must be given the opportunity to begin our lunch by 5hrs 59min & 59secs into our shift and could even sign a waiver if the lunch was taken later.
    The response I keep getting is Cal-OSHA states we have to do it this way, and now they are saying that they think we’re different since we are a subdivision in a county agency.
    Thank you!

    • Eugene Lee on November 8, 2017 at 3:54 pm

      In general, the employer has the right to set your work schedule, and that includes when you take your breaks. So the agency has the power to do that. You can for a later lunch, if that’s what you want, but the employer does not have to agree to it.

      Public entities are immune to many labor laws, but breaks are one of the few exceptions. Even government agencies must comply with the California break laws.

  20. Richard on November 7, 2017 at 1:50 pm

    I am a salaried employee and our employee is stating that we only get a 30 minute lunch break. No rests of any kind before or after my lunch. I work 8 plus hours. Is this legal?

    • Eugene Lee on November 7, 2017 at 4:31 pm

      If you are truly an exempt, salaried employee, then you do not generally qualify for meal and rest breaks. However, most employers get exemptions wrong. Exemptions can be extremely complicated however, and there are a lot of factors. I suggest you contact a lawyer to discuss this further.

  21. Deb Wineteer on November 6, 2017 at 3:39 pm

    Am I understanding that the employer no longer has to have you take your lunch by your 5th hour if you choose not to? My co-worker starts at 7:30 but does not take her lunch until 1pm – her choice.

    • Eugene Lee on November 7, 2017 at 4:38 pm

      If the late lunching is happening because the employee CHOOSES to eat late, then there is no late lunching violation. The violation only arises if the late lunching is involuntary by the employee and the employer is either causing, or not fixing, the situation giving rise to the involuntary late lunching.

      Of course, please keep in mind that the employer retains the right to control an employee’s daily schedule. So even though your coworker doesn’t mind eating lunch late, the employer has the right to veto that and tell her to eat her lunch on time.

  22. Michelle H. on November 6, 2017 at 12:38 am

    Is there such a thing as sending employees for their meal period (30 minutes) too early? In this case 2 hours into an 8 hour shift. Also rest and meal periods are supposed to be separated correct? So sending an employee for a meal break AND a 10 minute break (40 minutes total) is a violation or just not recommended?

    • Eugene Lee on November 7, 2017 at 4:42 pm

      The California Supreme Court stated in a 2012 case called Brinker v Sup. Ct. that, in an 8 hour shift, there should be two separate paid 10-minute rest breaks, each one on either side of one 30-minute unpaid meal break. Rest breaks should, to the extent practicable, be in the middle of each 4 hour work period. So a lunch break 2 hours into an 8 hour shift is not necessarily a violation so long as there are separate rest breaks on either side of the lunch break.

      And yes, rest and meal breaks must all be separate, they must not be combined (though there are certain industry-specific exceptions). A combined 40 minute meal/rest break is very likely a violation (but again, there are a few exceptions).

      • Michelle H. on November 7, 2017 at 4:57 pm

        A combined 30 minutes meal period and ten minutes rest period is a very frequent practice in my place of employment. A restaurant chain.
        30 minute meal periods are paid, and clocked in/out for. However 10 minute rest periods are not clocked.
        Those who open and work a full shift (8am to 4pm) are usually required to take their meal period 2 hours into the shift and more often than not also take a 10 minute break in addition. These 40 minute breaks are scheduled into the deployment chart for each shift.

        This has been the practice in the entirety of my employment with this location. What steps should I take to do something about this?

        • Eugene Lee on November 7, 2017 at 5:00 pm

          As I said, there are certain industry-specific exceptions. The restaurant industry is NOT one of them. So that is a clear violation. Please give us a call to discuss further at (213) 992-3299.

  23. Samatha Lorris on November 4, 2017 at 3:24 pm

    I’m working a 12hr shift and my boss is forcing me to stay on premises for my first unpaid lunch, can he do that?

    I understand our second lunch is paid for and working, I signed off on doing that, but to be told he’s not paying me but I can’t leave seems a bit sketchy.

    I’m tempted to leave because I’m not getting paid, so what can he do about it.

    • Eugene Lee on November 7, 2017 at 4:51 pm

      Hi Samantha,

      He cannot force you to stay on premises for your meal break unless he is prepared to pay you an extra 1-hour meal break premium. Even if he does, he is also required to provide you with an adequate, dedicated eating area.

      You should consider filing a labor board complaint.

  24. Thomas Lynn Jessop on November 4, 2017 at 1:03 pm

    I am two questions.

    Can I be told that I have to take a lunch break on a 5 hour shift?

    Can my boss make me take my lunch less than an hour into my shift.

    • Eugene Lee on November 4, 2017 at 5:45 pm

      Thomas, yes, you can be told to go on lunch break on a 5 hour shift. Employers have discretion to set work schedules, including break schedules. If you don’t work over 5 hours, you are not legally entitled to a meal break, but the employer can choose to give you one anyway if they want to. So long as the lunch break does not exceed 1 hour – if it does, it could constitute a split shift depending on your pay rate.

      Normally, employers should schedule separate rest breaks before and after each meal break, to the extent practicable.

  25. KJDubreuil on November 4, 2017 at 11:19 am

    Confused employer here. I give my employees their 10 or 15 minutes breaks on the clock and I encourage, instruct and cajole them to take their breaks. If the employee signs a waiver I allow them to work up to 6 hours total in a shift without requiring them to take a meal break off the clock. Or they may take a 30 minute unpaid lunch at will. I never prevent them and the workload does not prevent them (except maybe in their heads because they are conscientious, but not actually in fact.)

    If the employee is scheduled for 5 hours or less I allow them to take one paid break and they may (but are not required) to take an unpaid lunch if they wish.

    If the employee is scheduled for 7.5 to 8.5 hours I require them to take a 30 minute lunch off the clock plus two paid breaks. I do have several employees on alternate work week schedules (properly voted on and documented) and those employees work 10 hours before overtime applies, plus they get all the paid and unpaid breaks and lunch breaks that are appropriate.

    My confusion lies with those employees scheduled to work over 6 hours who resist going on lunch and keep trying to drag their feet before they clock out for lunch.

    Are they required to leave by 4 hours and 59 minutes into their shift (end of 5th hour) or 5 hours and 59 minutes into their shift (end of 6th hour) in order to comply with the CA state law? I do require them to take lunch and I do battle with them daily, weekly and monthly to get them to take lunch.

    I have resorted to writing them up at times, holding staff meetings about it and instructing new hires very specifically about their rights and responsibilities regarding breaks and lunch. They still try to work past the beginning of the 6th or up to the 7th hour because the individual is doing something that they don’t want to leave. (Some of the work is time sensitive and must be completed at the moment it presents itself so if Employee A leaves then Employee B will finish the task and A will not be involved in the outcome even though A is invested in the task up to that point.)

    At what point can I relax and know that I am not violating the law and subject to penalties or owing back wages to an individual? If I provide the breaks and lunches, tell them to take the breaks and lunches, provide workers to take over during the breaks and lunches, write them up if they don’t take the breaks and lunches etc could they still try to collect the break and meal period penalties from me?

    Is it the end of the 5th hour (4 hour and 59 minutes) or the end of the 6th hour (5 hours and 59 minutes) that is the deadline for compliance with the lunch break requirement? They are arguing with me that it is the end of the 6th hour, not the 5th.

    Thank you so much

    • Eugene Lee on November 4, 2017 at 5:50 pm

      Sounds like you’re doing a very good job with your break policies and practices. You should still consult with an employer-side attorney to see if there’s more you can do, because there always is.

      As for meal breaks, they must be allowed to start before the end of the fifth hour. However, if there is a meal break waiver, no meal break needs to be provided unless the shift goes over six hours. If that is the case, then the meal break must still be permitted to start before the end of the fifth hour. So if there is any sign the shift is going to exceed six hours, better be safe and permit meal breaks to be taken before the end of the fifth hour.

  26. Bill on November 4, 2017 at 8:28 am

    I am trying to fully comprehend the rule regarding waiving a meal break. We have a restaurant that has a 5 to 11 shift that many times may run until 11:30 or 11;45. In this situation can a employee wave their meal break and work thru it as it seems to state above?

    • Eugene Lee on November 4, 2017 at 8:53 am

      No – the first meal break can be waived only if the work shift does not exceed 6 hours. In your case, your shift exceeds 6 hours. If you are not being permitted to take your meal break, you should consider filing a labor board complaint.

      • Bill on November 4, 2017 at 5:36 pm

        Eugene, The problem is that some of the staff doesn’t want to take a 30 minute off the clock break as it is already a short shift in their eyes. But from what you stated it sounds like we must have them take their 30 minute break.

        • Eugene Lee on November 4, 2017 at 5:41 pm

          Well, the Brinker decision stated that employers do NOT need to police breaks. Employers simply have to make them available to employees, and not discourage or punish the taking of those breaks. So long as employees are given a choice to take breaks and the employer does not stand in the way, if employees choose NOT to take them, then that is NOT on the employer, that is on the employee.

          • Bill on November 5, 2017 at 8:31 am

            Ok, should we have the employees in question sign a waiver to protect ourselves as if a problem ever arises we would have not time clock documentation showing that they took their breaks and would be penalized. Does this premise also hold true for the second 10 minute paid break on a 8 hour shift? Sounds a bit convoluted.

  27. Janet Jones on November 4, 2017 at 12:38 am

    What about a veterinary hospital that is consistently understaffed, and chooses to overbook and allow walk ins and emergencies. Are they exempt if they deny lunch breaks and paid 10 minute rest periods?

    • Eugene Lee on November 4, 2017 at 8:58 am

      I’m not aware of any special exceptions for veterinary hospitals, which I believe falls under wage order 5 of the IWC orders. If employer overbooking and understaffing are preventing employees from taking their meal and rest breaks on time, someone should submit a written complaint expressing their concern to management. If they don’t fix the problem, consider filing a labor board complaint.

  28. mark on November 3, 2017 at 1:10 pm

    “Practicable” was famously too vague for general Lee’s subordinate at Gettysburg. What does it mean in this context? Please contrast practicable vis a vis inconvenient.

    “No – rest breaks and meal breaks must be separate from each other. You can’t have a 1 hr break and say that that constitutes all meal and rest breaks for the day. In an 8 hour shift, the California Supreme Court has held that there should be a separate rest break on either side of the meal break, to the extent practicable. ”

    Also, I’ve read meal breaks are mandatory for workers who’ve worked more than 5 hours. I’ve read elsewhere it’s 5 or more hours. Which is it, >5 or =>5?

    • mark on November 3, 2017 at 1:11 pm

      Thanks in advance for taking a moment to respond,
      m

    • Eugene Lee on November 3, 2017 at 2:55 pm

      Hi Mark,

      The word “practicable” isn’t my word. That’s the precise word the California Supreme Court used. The Supreme Court left it to each judge, administrative hearing officer and/or jury to decide what “practicable” means in each situation. I’m sorry I can’t give you a better answer, but that’s the state of the caselaw.

      As for >5 or >=5, the answer is, unequivocally, >5 (i.e., greater than 5). If a person works exactly 5 hours, they would NOT be entitled to a meal break.

      • mark on November 3, 2017 at 3:48 pm

        Hi Eugene,

        It’s impracticable for a surgeon to take a break with his patient open on the table but it’s practicable for a janitor to take his breaks almost anytime during his shift. Surely, case history offers guidance. What are the established boundaries?

        • Eugene Lee on November 3, 2017 at 4:24 pm

          Hi Mark,

          I’ll try to research this for you as soon as I have a free moment and get back to you. Thanks for your comments/questions.

          • mark on November 3, 2017 at 5:06 pm

            I look forward to reading your response. Hope it’s interesting research for you & illuminating for your readers.

  29. Susan mansfiled on November 2, 2017 at 4:49 pm

    Where I work I’m the only empyre on duty and cannot close the business is my boss in volition

    • Eugene Lee on November 2, 2017 at 4:50 pm

      If that is preventing you from taking meal and rest breaks, very likely it is a violation. But I would need to know more about the nature of the business.

      • Susan mansfiled on November 2, 2017 at 5:27 pm

        It’s a bar

        • Susan mansfiled on November 2, 2017 at 5:29 pm

          Neigherhood bar 3 employees

          • Eugene Lee on November 2, 2017 at 6:26 pm

            Since it’s a bar, I’d say that’s a violation – you are being denied your breaks. You should consider filing a labor board complaint.

      • Susan mansfiled on November 2, 2017 at 6:07 pm

        It’s a neigherhood bat with 2 other employees

  30. Dawn Anderson on November 2, 2017 at 3:10 pm

    Is there different requirements in regards to the break period in “New Construction”? i.e., does the employer have to give the employee the second break period?

    • Eugene Lee on November 3, 2017 at 5:00 pm

      Hi Dawn, I’m not sure what you mean by “New Construction”. Can you explain a little more?

  31. Vicki Braxton on November 2, 2017 at 2:31 pm

    I run a childcare center and we work 8 hour shifts. The shifts are scheduled for 8-5 with an hour worth of down time which consists of breaks and lunch or two 15 min breaks and a 30 minute lunch. They are paid the full 8 hour shift. Have I been doing this correctly?

    • Eugene Lee on November 2, 2017 at 2:51 pm

      No – rest breaks and meal breaks must be separate from each other. You can’t have a 1 hr break and say that that constitutes all meal and rest breaks for the day. In an 8 hour shift, the California Supreme Court has held that there should be a separate rest break on either side of the meal break, to the extent practicable. In some industries, like construction, a rest and meal break can be combined. But certainly not all breaks. I recommend you look into revising your break policy right away.

  32. Craig Miller on November 2, 2017 at 11:05 am

    My wife starts a 8 hour work shift at 8:30 AM ..at 9:15 they are giving her her first 15 minute break and then two hours and 15 minutes from her starting work they are giving her her half hour lunch break at 10:45am. Is this legal? She has to work until 5:30pm. They will give her another 15 minute break later in the afternoon.

    • Eugene Lee on November 2, 2017 at 2:04 pm

      Yes, that is legal. This exact issue was brought up to the California Supreme Court in the 2012 case of Brinker v. Sup. Ct. The court sided with the employers on this issue.

  33. unknown on November 2, 2017 at 10:47 am

    can your boss give you a break before you start the work day?

    • Eugene Lee on November 2, 2017 at 2:02 pm

      The California Supreme Court has said that rest breaks should be separate and on either side of meal breaks to the extent practicable. Rest breaks should also be in the middle of each work period to the extent practicable. The employer would need to have a good reason to schedule a break at the very start of your shift.

  34. Michael on November 2, 2017 at 8:28 am

    Since breaks are paid, do I have to clock in and out for my breaks?

    • Eugene Lee on November 2, 2017 at 2:01 pm

      Even though rest breaks are paid, the employer has the right to require you to clock in and out for them, for recordkeeping purposes.

  35. Judie on November 1, 2017 at 8:48 pm

    If an employee is scheduled a 10 hr shift, the rest/meal breaks are the same as an 8 hr shift? Ex: clock in 5 am, 1st rest break 7 am, meal 9-9:30, 2nd rest break 11:30, clock out at 1:30 for an 8 hr shift. Buy for a 10 hr shift there is no additional break even though it will be 4 hrs of work (11:30 – 3:30) without a rest period ?

    • Eugene Lee on November 1, 2017 at 10:03 pm

      That’s correct. But if you work OVER 10 hours on the clock (subtracting unpaid meal breaks), then you are entitled to an additional paid rest break and an additional unpaid meal break. Yes, you could go from 11:30 to 3:30 without a rest break. But the rest breaks are supposed to be in the middle of each work period to the extent practicable. So there’s an argument that the second rest break at 11:30 am should be moved to 12:30 pm, which would be the exact middle between the end of lunch and the end of your workday. Of course, the employer could have a good explanation for why the second rest break needs to be an hour earlier at 11:30 am.

      Your exact concern about the timing of meal and rest breaks (and how you could go for hours without them) was raised before the California Supreme Court in Brinker v Sup. Ct. Unfortunately, the Supreme Court sided with the employers on that one.

  36. Joani on November 1, 2017 at 8:18 pm

    I work a 7.5 hr shift. What is the required meal/rest period? I am a county employee. For 8 hrs it is 2 15 mins paid and 1 half hr unpaid lunch. But how is it figured for a 7.5 hr shift? And are you supposed to take the lunch before the 5th hour?

    • Eugene Lee on November 1, 2017 at 9:56 pm

      Really no different – you still get two paid rest breaks and one meal break. You are supposed to start your meal break before the END of your fifth hour. So if you start at 9 am, lunch must start on or before 1:59 pm.

  37. Angelica on October 31, 2017 at 10:25 pm

    Does an employer have to pay penalty if employees don’t clock out for lunch before or exactly at 5:00 hours? For example, an employee comes in at 8 AM, do they get meal penalty if they clock out for lunch at 1:01 PM?

    • Eugene Lee on November 1, 2017 at 1:32 pm

      Well, technically, that is a late lunching violation, so the employee would be entitled to a penalty. Of course, that is late by only 2 minutes so the employee might not get a lot of sympathy from a judge, jury or administrative hearing officer. If it only happened once, the employee should probably let it go. But if it’s a chronic problem, that’s a different story. The employee should then consider filing a labor board claim.

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