Meal & Rest Breaks In California
Meal and rest break compliance continues to be the source of a great
deal of litigation for California employers. Understanding California's
meal and rest breaks requirements is extremely important.
To comply with these rules, employers must do everything possible to
communicate the legal requirements of California's employee break laws
to nonexempt workers and provide them opportunities to take meal and
This section discusses the meal and rest break requirements that California employers must meet.
Brinker Meal and Rest Case Decided
In 2012, the California Supreme Court decided an important meal and rest break case, Brinker Restaurant Corp. v. Superior Court.
The question of whether employers must ensure breaks are taken or
must simply provide breaks has been a source of significant litigation
in both federal and state courts.
The California Supreme Court ultimately ruled in Brinker's favor on
the most critical part of the decision – holding that employers do not
have to ensure employees take their meal breaks. Once the meal period is
provided, there is no duty to police meal breaks to ensure no work is
The unanimous ruling is largely a win for California employers, but
is not without potential pitfalls. Employers with vague policies may
expose themselves to increased liability, and the decision makes clear
that meal and rest break issues are still subject to class action
Employers with specific questions regarding their meal and rest break
practices should consult legal counsel. CalChamber members can learn
much more about the Brinker decision's impact on employers from HRCalifornia.com, where Brinker is discussed in greater detail.
Meal Break Obligations In California
You cannot employ someone for a work period of more than five hours
without providing an unpaid, off-duty meal period of at least 30
minutes. The first meal period must be provided no later than the end of
the employee's fifth hour of work.
The employer satisfies its legal obligation to provide an off duty meal period to its employees if it:
- • Relieves its employees of all duty.
- • Relinquishes control over their activities.
- • Permits them a reasonable opportunity to take an uninterrupted, 30-minute break.
- • Does not impede or discourage them from doing so.
A meal break can be unpaid only if all of the above conditions are met.
When a work period of not more than six hours will complete the day's
work, the meal period may be waived by mutual consent of the employer
and the employee.
Second 30-Minute Meal Break
Employers must provide a second meal break of no fewer than 30
minutes for all workdays on which an employee works more than 10 hours.
The second meal break must be provided no later than the end of an
employee's 10th hour of work.
An employee can waive the second meal period only if all of the following conditions are met:
- • The total hours worked on that workday are not more than 12.
- • You and the employee mutually consent.
- • The first meal break of the workday was not waived.
On-Duty Meal Breaks
Employees can take on-duty meal periods only in certain limited
circumstances. An on-duty meal break must meet all of the following
- • Is permitted only when the nature of the work prevents an employee from being relieved of all duty.
- • Must be agreed to in writing by you and the employee.
- • Must be paid.
- • Can be revoked at any time in writing by the employee, except under Wage Order 14 (Agricultural Occupations).
Employers take note: Use caution and consult with legal counsel
before authorizing on-duty meal breaks. On-duty meal periods have been
upheld only in very limited circumstances.
10-Minute Rest Break Obligations
Employers must authorize and permit rest periods for all nonexempt
employees whose total daily work time is at least 3.5 hours. These
mandatory rest breaks must be offered at the rate of 10 minutes for
every four hours worked, or "major fraction" thereof. Anything over two
hours is considered by the courts to be a "major fraction" of four.
As a general rule, and insofar as practicable, the rest period must
be in the middle of the four-hour work period. Though this is the
general rule, there is no absolute obligation to permit a rest period
before a meal period.
According to the California Supreme Court in Brinker,
"[s]horter or longer shifts and other factors that render such
scheduling impracticable may alter this general rule." Employers are
given some latitude as they may "deviate from that preferred course
where practical considerations render it infeasible."
Employers take note: Employers should be cautious about departing
from the general rule to provide rest breaks in the middle of each work
period and should consult with counsel if practical considerations
unique to their industry appear to warrant a departure from the general
Employers must treat rest periods as hours worked, and must pay rest
periods as time worked. Because employees receive compensation for rest
breaks, they can be required to remain on the premises during their rest
Consequences for Failing to Provide Meal and Rest Breaks
California employers face costly consequences for violating work
break laws. Court decisions have increased the potential for large
Missed Meal Break
For each workday that you fail to provide an employee a meal period,
as required, you owe the employee one additional hour of pay at the
employee's regular rate. The additional hour of pay is a wage owed to
the employee. This allows employees up to three years to claim unpaid
Missed Rest Break
If either rest break is not given, you owe the employee one hour of pay, which you must include in the next paycheck.
Missed Meal and Rest Breaks
There has been a great deal of discussion about the premium wage
employers owe an employee who misses a meal break and a rest break in
one day: Is it one hour of pay? Or is it two hours of pay because two
In United Parcel Service v. Superior Court of Los Angeles County,
a California Court of Appeal ruled that there are two separate remedies
because the premium wage requirement is contained in two separate
sections of the Wage Orders.
HRCalifornia members have access to several tools and services that help those who manage human resource to work through Meal and Rest Break issues, including:
This quiz will test your knowledge about meal and rest breaks in California.
Meal Break Forms
Use this form when you have a nonexempt worker whose work prevents
he/she from being able to take a meal break and both you and the worker
intend for the worker to spend the 30-minute meal break while still on
duty. WARNING: On-duty meal breaks are enforceable in very limited
circumstances, please consult with legal counsel before using this form.
Meal Break Waiver - Employee Shift 6 Hours or Less »
Use this form when a nonexempt worker will work a shift of six hours
or less and both you and the worker wish to waive the required 30-minute
Use this Spanish-language form when a nonexempt worker will work a
shift of six hours or less and both you and the worker wish to waive the
required 30-minute meal break.
Use this form when a nonexempt worker's shift will be more than 10
hours but less than 12 hours, the worker has not waived his/her first
meal break, and both you and the worker wish to waive the second
required 30-minute meal break.