Understanding California's Work Break Laws

California's labour laws are designed to protect workers and ensure they receive adequate breaks throughout their shifts. The state's requirements for meal and rest breaks are extensive and are a frequent source of litigation. This is a brief overview of the law in California for breaks at work.

Meal breaks for non-exempt employees

In California, non-exempt employees are entitled to one unpaid 30-minute meal break when working more than five hours in a day. This break should commence before the completion of the fifth hour of work and can be waived only if the workday does not surpass six hours. Employers must relieve the employee of all duties, relinquish control of their activities, and permit a reasonable opportunity to take an uninterrupted 30-minute meal break.

If an employee works over 10 hours in a day, they are entitled to a second 30-minute meal break, which must start before the end of the tenth hour of the shift. The employee can agree to waive the second meal break, but only if they do not work more than 12 hours and did not waive their first meal break.

Employers must provide employees with off-duty meal breaks. This means that employers must relieve employees of all duties, relinquish control over their activities, and allow a reasonable opportunity to take an uninterrupted 30-minute break. Employees cannot be impeded or discouraged from taking their breaks.

On-duty meal breaks, where an employee continues to work but is paid for the time, are permitted in certain situations. An on-duty meal break agreement must be in writing and must inform the employee of their right to revoke the agreement at any time.

Meal breaks are usually taken off the clock and must not be included in the calculation of hours worked.

Rest breaks for non-exempt employees

In California, non-exempt employees are entitled to one unpaid 30-minute meal break and two paid 10-minute rest breaks during a typical 8-hour shift. Employees must receive their off-duty meal breaks before the end of the fifth hour of work. Employees must receive 10-minute off-duty rest breaks for every four hours worked (or major fraction of four hours), and the rest breaks should be in the middle of a work period "insofar as practicable."

Rest breaks must be ten consecutive, uninterrupted minutes. During the break, an employee must be relieved of all duties, and the employer must provide "suitable resting facilities" in an area separate from the bathroom. Rest breaks are paid breaks.

As to timing, an employee should take a rest period in the middle of the workday "insofar as practicable." Employers cannot require employees to remain on-site or on-call during rest breaks.

Employees may skip rest breaks. Employers cannot pressure or encourage employees to waive rest breaks.

On-duty meal breaks

In California, an on-duty meal break is only permitted under very limited circumstances. An on-duty meal break is when an employee is not relieved of all their duties during their meal period and is considered to be still on the clock. This is distinct from an off-duty meal break, where an employee is relieved of all duties and is free to leave the employer's premises.

There are three requirements that must be met for an on-duty meal period to be lawful:

• The employer and employee must have entered into a signed agreement authorizing the on-duty meal period.
• The signed agreement must expressly state that the employee may, in writing, revoke the agreement at any time.
• The nature of the work must prevent the employee from being relieved of all duty during the meal period.

The third requirement is often the most litigated and contentious. Courts and administrative agencies, like the California Labor Commissioner, consider various "objective" factors when determining whether the "nature of the work" allows for an on-duty meal break. These factors include the nature of the work performed, the availability of other employees to provide relief, and whether the employer's work product or process would be damaged or destroyed if the employee were relieved of all duty.

Examples of jobs that may be eligible for on-duty meal breaks due to the nature of the work include a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site. However, even employees in these types of jobs may be scrutinized by the courts and the Labor Commission and may be found to be ineligible for on-duty meal breaks.

It is important to note that even when an employee agrees to an on-duty meal break, the employer must still provide the employee with time for a meal break. If an employer fails to provide an on-duty meal break or does not pay for it, the employee may be entitled to additional compensation.

Exempt employees' meal breaks

In California, exempt employees are entitled to meal breaks but not rest breaks. To be classified as exempt, an employee must meet three requirements:

• Salary must be at least twice the state minimum wage for full-time employment.
• Primary duties must be administrative, executive, or professional tasks.
• Duties must involve the employee's use of discretion and independent judgment.

Exempt employees who work for more than five hours have a right to a meal break. This break should be uninterrupted and last a minimum of 30 minutes. The employer should relieve the employee of all duties and relinquish control of their activities during this time.

The timing and number of breaks that an employee is entitled to will differ depending on the hours worked and the agreements signed during employment. For example, an employee working a shift of more than ten hours is entitled to a second 30-minute meal break, which must be provided no later than the end of the tenth work hour.

While employers must offer meal breaks, they do not have to ensure that employees take those breaks. It is important to note that employers are not obligated to force employees to take their meal breaks, and it is not considered a violation of California labor laws if an employee chooses not to take their break.

Employer penalties for denying breaks

In California, employers are required by law to provide their employees with meal and rest breaks. If an employer unlawfully denies a meal or rest break, the employee is entitled to one extra hour of pay at their regular hourly rate for each workday the violation occurs. This additional pay is referred to as "premium pay".

If an employer fails to pay the premium, an employee may:

• Handle the dispute themselves directly with the employer (informally);
• File a wage claim with the Division of Labor Standards Enforcement; or
• File a lawsuit against the employer.

An employee has three years from the date of the violation to bring a claim. Employers may not retaliate or discriminate against employees for asking about a missed break, objecting to an illegal practice, or for filing a claim with the Labor Commission.

Each dispute is unique, and not all employers may be willing to handle the dispute informally, so it is best to consult an employment attorney to assess your options.

Frequently asked questions