Rest and meal breaks in California are a topic of much discussion – they’ve been included in the California Wage Orders for more than 30 years! Nonetheless, the rules are continuously evolving, it seems. Rest periods (both for meals and for other rest breaks) are legally mandated for employees who work more than a specified number of hours, and employers can get into legal troubles for non-compliance. In a BLR webinar titled "Meal & Rest Breaks in California: Long-Awaited Brinker Decision Is Finally Here; What It Means for You," Marc L. Jacuzzi outlined some guidance on rest and meal breaks in California. Here are some tips on when meal breaks must be given.

Rest and Meal Breaks in California: Are They Mandatory?

Meal breaks in California are mandated by law. Jacuzzi explained that "when someone is suffered or permitted to work . . . for 5 hours, an employer is put to a choice" on what they may do. The employer must either:

1. "afford an off-duty meal period"
2. "consent to a mutually agreed-upon waiver if one hour or less will end the shift"
3. "obtain written agreement to an on-duty meal period if the circumstances permit"

Failure to do one of these will render the employer liable for premium pay, and the amounts add up quickly.

Rest and Meal Breaks in California: When Must a Meal Break Be Given?

An employer may not employ an employee for a work period of more than 5 hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee.

An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on-duty" meal period and counted as time worked. An "on-duty" meal period shall be permitted only when 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 written agreement shall state that the employee may, in writing, revoke the agreement at any time.

Rest and Meal Breaks in California: Additional Meal Break Requirements

Simply allowing a meal break within these timeframes is not sufficient. To comply with regulations on rest and meal breaks in California, an employer must:

• Relieve employee of all duty (but need not ensure that the employee does not work; in other words, there is no obligation to police meal breaks).
• Relinquish control over the employee’s duties and activities during the break time. An employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation and premium pay for hours worked. An employer that relinquishes control but knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations and owes no premium pay, but nonetheless owes regular compensation to its employee for time worked.
• Permit a reasonable opportunity for uninterrupted 30-minute break.
• Not undermine meal period policy by pressuring employees to perform duties in ways that omit breaks.

Something as simple as a lunch break can have consequences if not properly applied. Are you in compliance?

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Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgilaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.