California requires employers to provide the opportunity for certain employees (called “non-exempt employees”) to take a lunch break.

Lunch breaks (legally called “meal periods”) must be provided after five working hours and must be at least one half-hour in length. Importantly, lunch breaks must be “duty-free”. A duty-free lunch break means that the employee is not required to perform any work. Employers who require employees to eat at their desk or do not allow the employee to leave the business premises do not provide “duty-free” breaks and are in violation of California law.

Employers who fail to provide a duty-free meal period are required to pay a penalty to the employee called a “meal period premium” of one additional hour of pay for every missed meal break. (For example, a non-exempt employee paid $10.00 per hour would be owed a $10.00 meal premium for each missed break).

Employers who systematically do not provide employee lunch breaks, especially those with many employees, face potentially enormous exposure in premiums, interest, penalties, and attorney fees.

There are only a few exceptions to California’s otherwise stringent lunch break requirement. One such exception is the “on-duty meal period”. Under the on-duty meal break exception, an employer may require an employee to work during their lunch break, provided that the employee is paid their normal wage during their lunch. Since it can be burdensome for employers to schedule and provide regularly occurring meal breaks, employers frequently attempt to use this exception.

However, on-duty meal breaks come with a huge catch. The exception is so narrow that only a tiny fraction of all employers could ever successfully use it to defend against a meal break lawsuit.

To apply the on-duty meal break exception, the employer must prove that the nature of the work makes it “virtually impossible” for the employee to take a duty-free half hour meal break. In other words, there is literally nothing the employer could reasonably do to create the circumstances that would allow a proper, duty-free lunch break.

Legally enforceable and valid on-duty meal periods also require the employer and the employee to enter into a revocable, written agreement stating that both parties agree to the on-duty meal period. This requirement is often overlooked by employers.

To illustrate these concepts, Mike works at Hot Dog on a Stick in Watsonville and is paid $15.00 per hour. Because Mike is the only manager during the night shift, Jared the owner requires him to be on-duty at all times to answer employee questions and deal with difficult customers. Jared verbally tells Mike that he must take “on-duty meal breaks” and forbids Mike from leaving the restaurant for longer than 10 minutes. Mike works for many years under these circumstances, and then is abruptly fired after he is wrongfully accused of stealing a corn dog.

Mike has a great case for unpaid meal breaks because the narrow on-duty meal break exception does not apply.

Even though Mike is the only manager at Hot Dog on a Stick, it is not “virtually impossible” for him to take a thirty minute, duty-free meal break. Other employees could have simply been trained to handle employee questions and customer complaints. Jared could have re-scheduled other employees to assure coverage during Mike’s half hour lunch break. Additionally, Jared failed to ever enter into a written On-Duty Meal Period Agreement with Mike, as is required by the narrow exception.

Can I take breaks at work?

All “non-exempt” employees are entitled to legally protected work breaks. A non-exempt employee is typically a non-managerial level employee, an employee who performs a physical job, or any employee who earn less than $41,600 per year. In contrast, an “exempt” employee will typically work in management or will have specialized job or background. An employee may earn much more than $41,000 per year still be considered “non-exempt.”

Numerically, most employees are non-exempt and are entitled to take protected breaks. An employee’s “classification” as exempt or non-exempt is a very fact-intensive analysis that depends on what the employee spends the majority of his or her time doing.

Employers regularly misclassify their employees. Employers have a financial incentive to classify employees as “exempt” to avoid the obligation to provide legally required breaks and to avoid paying overtime. And many employers simply do not know how rigorous their obligations are under California law. For these reasons, many employees are not provided with rest and meal breaks when they should be.

What are protected rest and meal breaks?

There are three types of protected breaks in California: rest breaks, meal periods, and recovery periods.

Rest Breaks:

Rest breaks are the most common form of legally protected break. All non-exempt employees are entitled to one, paid 10-minute rest break for every four hours worked. Most importantly, the rest break must be “duty-free”. A duty-free rest break means that the employee is not doing any work for the employer.

Meal Periods and Lunch Breaks:

Meal periods or lunch breaks are the next most common type break. One unpaid, half-hour meal period must be provided for every five hours worked. Like rest breaks, the employee must be given a realistic and meaningful opportunity to take a “duty-free” meal period. This means that employees must be permitted to leave work and be completely free of any work obligations. Employees who are required to take their lunch break at their desk are not being provided with a duty-free meal period.

Recovery or Cooldown Periods:

California also requires employers to provide five minute recovery periods or “cooldown periods” or “shade breaks” to employees who work outside in high temperatures. The purpose of this type of break is to prevent heatstroke illness. Recovery periods are the least most common form of protected break because they only apply to employees who work outdoors and in the heat, such as construction workers, agricultural workers, and landscaping employees.

What happens if an employee is deprived of their breaks?

Employers owe their employees penalties if the employee is deprived of the opportunity to take legally protected breaks. One such penalty is called a meal or rest break premium—equivalent to one additional hour’s pay at the employee’s regular rate of pay for missed breaks, up to two hours per day. These penalties can add up to thousands of dollars, especially for employees who have been deprived of their breaks for a long period of time.

As an illustration, take the case of José the bartender. José works as a bartender at a popular bar in downtown Santa Cruz. José works five nights per week from 4:30 p.m. to 2:30 a.m. and is paid $15.00 per hour. José works with one other bartender, Mike. Mike and José are the only employees on site at the bar. The bar is very popular among UCSC students and patrons are lined up at the bar waiting to buy drinks all night long. José has been repeatedly told by the bar’s owner, Jared, under no circumstance should any patron wait longer than 5 minutes at the bar for a drink.

Given the bar owner’s instructions to José about customer wait times, the bar’s popularity, and the understaffing, Jose never has the opportunity to take a duty free break at work.
Unfortunately, José is abruptly terminated after he presses the wrong button on the credit card machine, resulting in a loss of hundreds of dollars to the bar.

José does not have a case for wrongful termination. However, he does have a great case for failure to provide rest and meal breaks. Since José worked ten hours per shift, he should have received two duty-free half hour meal periods and two duty-free 10-minute rest breaks. José can get the maximum penalty of two hours additional pay for every day that he was deprived two or more breaks; $30.00 per day. That totals $7,800 per year going back up to four years, or $31,200.

After unpaid overtime, interest, and state penalties are factored in, José’s damages are in excess of $100,000.

Are you a Santa Cruz, Monterey, or Salinas employee who can’t get a break at work? Contact the Brian Mathias Law. Se habla español.

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