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The Lunch Break Basics

Posted by Caleb A. Miller | May 05, 2022 | 0 Comments

Typical Schedule of an hourly worker
Lunch Break Basics

For most employees in California, your meal and rest periods (lunch and rest breaks) will follow our above timeline. That is In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, 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 employee only if the first meal period was not waived. Labor Code Section 512

Keep in mind, these meal period waivers are always revocable, and you are entitled to take your lunch break if you choose to. 

During your lunch break or meal period, the employer must relinquish all control over you for the 30-minute period. This means you are not answering text messages, e-mails, phone calls, you are not restricted from where you can travel for lunch or any other manner of control. Employees must be free to leave the worksite/facility.  

The Meal Period Waiver

As stated above, the meal period waiver is effective with the mutual consent of both the employee and the employer. So, what is "mutual consent?" Mutual consent is a common understanding between the parties to agree to the terms of the agreement. In the context of meal period waivers, we are looking for proof that the parties have made this agreement. We are looking for a signed agreement in writing detailing the terms of the waiver. Your employer cannot simply tell you to miss your lunch break simply because your shift is less than 6 or 12 hours. 

Exceptions to Standard Lunch Break Requirements

The Motion Picture Industry under IWC Wage Order 12-2001 requires the first meal period prior to the conclusion of the sixth hour of work; rather than the fifth hour of work. 

Recently, the transportation industry has found that the meal period rights employees had were preempted by the Federal Motor Carrier Safety Administration (FMCSA) in a case called International Brotherhood of Teamsters, Local 2785 v FMCSA. This federal law requires truck drivers to take one 30-minute break during the first eight hours of a shift. 

What If I Miss my Meal Period or Lunch Break?

If an employer fails to provide an employee a meal period or lunch break in accordance with an applicable IWC Order (specific to the industry the employee works in) the employer must pay one additional hour of pay at the employee's regular rate of pay for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.

The "regular rate of pay" is the compensation an employee normally earns for the work they perform. The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.

Put simply, if you miss your meal period, the employer owes to you a one-hour penalty. That one hour is calculated at the average hourly earning you make including any commissions or non-discretionary bonuses. If you receive weekly bonuses, that amount will be added into the regular rate of pay for a true hourly wage rate penalty. 

I'm Getting my Lunch Break, but I am not Allowed to Leave the Worksite.

Your employer can require that you remain on its premises during your meal period, even if you are relieved of all work duties. However if that occurs, you are being denied your time for your own purposes and in effect remain under the employer's control and thus, the meal period or lunch break must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to the Industrial Welfare Commission Wage Orders, if you are required to eat on the premises, a suitable place for that purpose must be designated. "Suitable" means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

If you are not allowed to leave your workplace premises, then be sure to check that you are receiving your meal period penalty. If your employer or supervisor retaliates against you from bringing up this issue, speak with our office immediately to discuss the next steps going forward. '

The "On-Duty" Meal Period.

Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay. 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 employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 –15, Section 11Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are 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.

The Attorneys at Miller Wilmers APC have extensive experience in fighting for the every day person's right to a California compliant meal and rest period. If you believe you have not received your compliant meal and rest period, contact an experienced employment attorney today. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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