Founder and Managing Partner
This article is in response to the alarming frequency of meal and rest break claims and exposure that they pose to employers. Claims for meal and rest break violations are now a common, and in fact, frequent “add-on” claim for all other types of employment claims. Indeed, non-wage/hour claims, such as discrimination/harassment, wrongful termination and retaliation are now routinely accompanied by meal/rest break-related claims. Due to the proliferation of these claims, it is more important than ever for employers to be up to speed on the current state of the law and best practices for avoiding liability, both of which we will address here.
What are an employer’s basic obligations to provide rest and meal breaks?
Under Labor Code section 512, in most industries, 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. The break must begin no later than the end of the employee’s fifth hour of work. So, for example, an employee who starts work at 9 am must begin the first meal break by 2 pm. If the employee is scheduled to work more than 10 hours (i.e., 9am to 9pm), s/he is entitled to not one, but two meal breaks of at least 30 minutes each, one before the end of the fifth hour, and one beginning before the end of the tenth hour of work. In this example, the second break would begin no later than 7:30 pm.
In most industries, employers must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. Anything more than two hours is considered to be a "major fraction" of a four hour work period. A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such period. The "net" ten minutes duration of the break refers to the fact that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest.
For easy reference, here is a chart that outlines the meal and rest break frequency requirements:
|Hours Worked in a Shift||10-Minute Paid Rest Periods Provided||30-Minute Unpaid Meal Periods Provided|
|Fewer than 3.5 hours||0||0|
|3.5 to 5 hours||1||0|
|Over 5 hours to 6 hours||1||1, but employee may waive|
|Over 6 hours to 10 hours||2||1|
|Over 10 hours to 12 hours||3||2, but 2nd employee may waive if the first meal break was taken|
|Over 12 hours to 14 hours||3||2|
Preventative cool-down breaks
Employers are to encourage employees to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating at any time. Any employee who takes a cool-down period must be monitored and asked if he/she is experiencing symptoms of heat illness, shall be encouraged to remain in the shade, and shall not be required to resume work until at least 5 minutes after the need for the cool-down period has ended. The employer must provide appropriate first-aid or emergency response to any employee who exhibits signs or reports symptoms of heat illness. Under the rules, when the temperature exceeds 80 degrees Fahrenheit, the employer must provide employees with one or more shady areas that are either open to the air or provided with ventilation or cooling. Even when the temperature does not exceed 80 degrees Fahrenheit, access to shade must be provided upon the employee’s request. The area of shade must be located as close as practicable to the areas where the employees are working and must be at least large enough to accommodate the number of employees on heat recovery or rest/meal breaks, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other.
What must an employer do to “provide” or “authorize/permit” meal and rest breaks?
Brinker Restaurant Corp. v. Superior Court (2012) is a seminal case addressing employer obligations to provide meal and rest breaks. In that case, the California Supreme Court ruled that, although an employer is not required to ensure that no work is performed during a break, the employer must do more than simply make a meal or rest break “available.” In general, to satisfy its obligation to provide a break, an employer must actually relieve employees of all duty, relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted break for the required duration (30 minutes for meal breaks or 10 minutes for rest breaks) in which they are free to come and go as they please, and must not impede or discourage employees from taking their breaks. Employers may not undermine a formal policy of providing breaks by pressuring employees to perform their duties in ways that omit breaks (e.g., through a scheduling policy that makes taking breaks extremely difficult). As the Supreme Court noted, “The wage orders and governing statute do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.” Which particular facts in any given case will satisfy the employer’s obligation to provide bona relief from all duty may vary from industry to industry. See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. As long as the employee is not skipping breaks or working through them due to the employer's (or a manager's) failure to offer the break or due to the press of business, employers are not required to "police" the break and make sure the employee takes the break, takes it at the correct time, or for enough time.
In addition, Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms. An employer may not require an employee to remain on the work premises during a rest break (although as a practical matter, for a ten-minute break the employee would not be able to travel more than five minutes away from work before heading back). Moreover, an employee’s use of toilet facilities does not, in and of itself, count as a rest break. So, although a rest break does not need to be extended for an employee who chooses to use the toilet during the break, the DLSE prohibits an employer from requiring that employees count any separate use of toilet facilities as a full rest period.
If an employer fails to provide an employee a rest or meal break in accordance with an applicable Wage Order, the employer must pay one additional hour of pay at the employee's regular rate of pay for each workday that the meal break is not provided, per Labor Code 226.7. However, if the break is offered in a compliant manner and the employee chooses to take it differently, or not at all, that does not require premium pay. Note that paying this premium may not necessarily protect the employer from a PAGA claim for failure to provide the timely meal break in the first place.
Recent case law
Developments related to rest/meal breaks and current status:
- In Ferra v. Loews Hollywood Hotel, LLC, the Court of Appeal found that the language requiring payment of meal and rest premiums at the “regular rate of compensation” was not interchangeable with the language requiring payment of overtime premiums at the “regular rate of pay” and therefore ruled that meal and rest period premiums were properly calculated based on plaintiff’s base hourly wage, rather than a “regular rate of pay” which factors in additional pay such as commissions and bonuses. However, the California Supreme Court has granted review of this decision and it is likely to be overturned.
- Rodriguez v. Taco Bell – The Taco Bell restaurant’s discounted meal policy for employees provided that employees could receive food from the restaurant at a discount IF they ate the food on the premises. Taco Bell’s stated reason for this requirement was to prevent employees from providing discounted food to friends and other non-employees. If the employee did not purchase discounted food, he or she was not required to stay on the premises during the meal period, and purchasing discounted food was entirely voluntary. The Court of Appeal determined that the restaurant met its obligation to provide meal breaks because it did relieve employees of all duties and relinquish control over their activities, and the purchase of the discounted meals was entirely voluntary, nor was there any evidence to show that Taco Bell pressured its employees to purchase the discounted meals. Rather, the employees were free to leave the premises or spend their meal breaks in any way they chose that did not interfere with Taco Bell conducting its business.
- Augustus v. ABM Security Services, Inc.- the California Supreme Court held that “on duty” and “on call” rest periods are against California law under Labor Code section 226.7 and ICW Wage Order 4. Specifically, the Court ruled that: (1) For a rest break to be proper, the employee must be relieved of all duties and the employer must relinquish any control over the employee, and (2) being on call (even if you are not usually called) means not being relieved of all duties. The Department of Labor Standards Enforcement, citing the Augustus case, states that relinquishing control over the employee means that the employer may not require the employee to remain on-site at the workplace for the break. However, as a practical matter, an employee on a ten-minute break could only travel five minutes from their place of work before heading back in order to return in time.
- Gustavo Naranjo, et al. v. Spectrum Security Services, Inc. – The Court of Appeals held that an employer’s failure to pay premium wages for meal and rest period violations, does NOT give rise to claims under Labor Code sections 203 (for waiting time penalties) and 226 (incomplete or inaccurate wage statements). However, the California Supreme Court has granted review of this case, so the issue is not ultimately resolved.
- Cole v. CRST Van Expedited- In 2019, the 9th Circuit Court of Appeal requested clarification from the California Supreme Court on the following questions that arose in this case:
- Does the absence of a formal policy regarding meal and rest breaks violate California law?
- Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?
Although definitive answers to these questions would greatly assist employment law practitioners with more clarity in assessing liability exposure and damages, the Supreme Court declined to provide such answers, and therefore, the issues remain unresolved. However, the 9th Circuit’s own treatment of these issues may be impactful on how other California courts (including, eventually the Supreme Court) address them in the future.
What employers should do to minimize exposure for the meal/rest break claims:
It is critical for employers to have compliant written meal and rest break policies that are distributed to employees. It is recommended that such written policies are distributed in a free-standing document, as well as in the employee handbook and with workplace postings.
Meal break waivers
Employers should offer optional written waivers of meal breaks, to be reviewed and signed by employees, with the clear ability to revoke the waiver at any time in writing. This way, whenever the employee works more than 5 but 6 or less hours, they can waive their meal break, and whenever they work 10-12 hours, they can waive their second meal break. Having this one-time waiver executed and on-file for all such occurrences can reduce liability for meal break claims. Employers should ensure that the waivers are voluntary and revocable to ensure fairness. If an employee does not take a required meal break, in the absence of a written waiver, the employer will be responsible to prove that the break was provided or that the employee voluntarily agreed to waive the meal period. Since proper record keeping for meal breaks falls on the employer, this is a small but powerful tool to keep in your arsenal against meritless claims.
Schedule the break times in advance
Having a set meal and rest break schedule can be helpful evidence that the employees took breaks, even in the absence of written time records. Employers should also note that while the rule is that the first meal break has to start within the first 5 hours, expecting an employee to take it at exactly that time is not wise because there’s no margin for error. If a salesperson is in the middle of a sale, or any employee is in a meeting with a supervisor or talking to a customer, and begins this work 4 hours and 50 minutes into their shift, that employee is likely to be forced by business reasons (not personal preference) to take a late lunch, and that requires a one-hour premium to be paid to the employee for that day.
Monitoring time punches
The best and most reliable evidence that meal breaks were taken in a compliant manner is the practice of employees recording the exact time that they started and ended the breaks contemporaneous with taking the breaks. Indeed, employers also have a legal obligation to maintain records of this information. However, this is much easier said than done, as work can be hectic and employees can forget to record these times. Therefore, it is very useful for employers to designate individuals to monitor time records on a frequent basis to ensure that any missed time punches for breaks are added/corrected to accurately record meal break times. It is ideal for the employer to have a consistent process through which a time record can be corrected, such as a form for the employee to enter the correct time entry information and to sign.
If the employee confirms that they voluntarily skipped or took a non-compliant break, particularly if it is for the employee's own convenience (like child pick-up), the employer should document this in writing, whether in an e-mail to or from the employee (retained for their employee file) or in a memo to file memorializing the conversation with the employee, including a witness.
Certification language on signed timesheets
It is a common (and recommended) practice for employers to insert language on timesheets above the employee signature line to affirm the employee’s knowledge of the meal/rest break policy, to allow them to specifically identify any missed breaks for which meal/rest break premiums would be due, to affirm (as applicable) that if the employee skipped any breaks it was their voluntary decision to do so, and to affirm that they were not pressured, encouraged or prevented from taking any breaks (or if they were, they have a duty to report it). It is strongly recommended that employers have a process in place by which employees are required to affirmatively report any missed or inaccurate time entries, preferably through a document that they sign.
Avoid auto-insertion of meal breaks
Even if an employer incorporates meal breaks into the work schedule and knows that the employees are taking breaks, automatically deducting time for meal breaks, or inserting meal break entries at fixed times or for a fixed duration is a practice that creates suspicion and calls into question the accuracy of the time records. This is because even if an employee regularly takes breaks, it is probably not plausible that an employee would be taking meal breaks in such a uniform manner each day. For example, it would be easy for the accuracy of time records to be called into question if the time records indicated that the employee took meal breaks at exactly 12:00 to 12:30 each and every day, especially if the nature of the employee’s duties involve customer service or are not particularly regimented.
Avoid the “on duty meal period” trap
Per the IWC Wage Orders, an "on duty" meal period is 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. Many employers do not realize, however, how narrow this criteria is. 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. Per the DLSE, ome 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. Therefore, if there are other employees who could cover the duties during the meal break, even if it is inconvenient, that does not justify instituting an on-duty meal break arrangement.
The proliferation of meal and rest break claims and numerous unresolved issues should only continue to feed the pipeline of future court decisions and legislation. As these legal developments vastly impact the day-to-day practices of employers and employees alike, employers and employment law practitioners should remain watchful of continuing developments, and continually update their practices accordingly.