California Employment Law Refresher: Meal Periods, Rest Periods, and Premiums (Part 1)

California Labor Code section 512 and the Industrial Welfare Commission (IWC) Wage Orders require employers to “provide” nonexempt employees with unpaid meal periods of at least 30 minutes if they work more than five hours in a work period. If nonexempt employees work more than 10 hours, employers must provide a second unpaid meal period of at least 30 minutes. The first meal period must begin before the end of the 5th hour of work and the second meal period must begin before the end of the 10th hour of work. Labor Code section 226.7—which will be discussed in a subsequent legal update—sets forth the penalties for failing to provide statutory meal periods.

What does it mean to “provide” a meal period?

In April 2012, the California Supreme Court answered this question in Brinker Restaurant Corp v. Superior Court (2012) 53 Cal.4th 1004, when it held that “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”

The Court went on to explain that an employer satisfies its obligation to “provide” meal periods “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry . . . [but] the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.”

Practically speaking, however, where meal periods are not reflected on an employee’s time records, an employer must demonstrate that meal periods were in fact provided to employees pursuant to the Court’s definition and that work and/or supervisor demands did not prevent employees from being relieved of all duty for a minimum of 30 minutes. The California Supreme Court confirmed this in 2021, when it held in Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, that “time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations.”

What constitutes 30 minutes?

Employers must relieve employees of all duty and relinquish control over their activities for a full 30 minutes, and employees must be permitted to leave the premises. Anything less than 30 minutes will not satisfy an employer’s meal period obligations.

In February 2021, the California Supreme Court ruled in Donohue v. AMN Services, LLC, cited above, that employers are not permitted to round time punches for meal periods. The Court explained: “[E]ven relatively minor infringements on meal periods can cause substantial burdens to the employee. Forcing employees to work through their meal periods not only causes economic burdens in the form of extra work but also noneconomic burdens on the employees’ health, safety, and well-being. . . . [W]ithin a 30-minute timeframe, a few minutes can make a significant difference when it comes to eating an unhurried meal, scheduling a doctor’s appointment, giving instructions to a babysitter, refreshing oneself with a cup of coffee, or simply resting before going back to work.” Accordingly, the Court concluded that a full 30 minutes must be provided to employees.

Can an employees waive meal periods? Are there meal period exemptions for certain industries or for union employees?

While employers must provide nonexempt employees with timely meal periods, there are occasions when employees can waive their right to a meal period even if they work more than five hours in a work period. Specifically, employees may voluntarily agree to waive their right to a meal period if they do not work more than six hours. This waiver does not need to be in writing; however, an agreement in writing will support the employer’s position that the agreement was mutual. Additionally, employees who work more than 10 hours but fewer than 12 hours may waive their right to a second meal period if they did not waive their first meal period. The waiver of the second meal period must be in writing and does not apply if the employee works 12 or more hours.

In addition, there are waivers and exemptions for certain industries and work categories including, but not limited to, certain health care employees. There are also exemptions for certain industries with a valid collective bargaining agreement containing specific elements. Employers should consult with legal counsel for specific information regarding these waivers and exemptions and the specific requirements to satisfy them.

Can employees work on-duty meal periods if an employer pays them for their time?

There are limited circumstances in which employees are able to agree (in writing) to take on-duty meal periods. Where applicable, the employer must be able to demonstrate that the nature of the work prevents employees from being relieved of all duty, the written agreement must expressly permit the employee to revoke the agreement at any time, and the employee must be paid for the on-duty meal period. This is a limited exception to the requirement that employees be relieved of all duty during their meal periods and is not a waiver or exemption from meal periods, meaning employees must still be provided with a meal period but that meal period may be taken while on-duty and being paid. The “nature of the work” must reasonably and actually prevent an employee from being relieved of all duties. Employers should consult with legal counsel to determine whether the nature of an employee’s work and other factors satisfy this standard, and to draft compliant on-duty meal period agreements, before moving forward with on-duty meal periods.

What are the penalties for failing to provide statutory meal periods?

In addition to premiums under Labor Code section 226.7, an employer’s failure to provide meal periods or satisfy a recognized waiver or exemption can also trigger Private Attorneys General Act (PAGA) penalties as well as penalties under Labor Code sections 203 (waiting time penalties for failure to pay all wages due at separation of employment) and 226 (wage statement penalties for failure to include accurate information on wages statements). The statute of limitations for meal period premiums is three years but liability can extend to four years with the addition of an unfair business practices claim under Business and Professions Code section 17200 et seq. There is a three-year statute of limitations for waiting time penalties and a one-year statute of limitations for wage statement penalties and PAGA claims.

More information regarding meal periods can be found on the California Department of Industrial Relations website.

This week’s legal update is intended to provide a refresher regarding employers’ meal period obligations. Legal updates in subsequent weeks will address rest and recovery period obligations and premium payments.

This legal update and any use of its information does not create an attorney-client relationship. Nothing contained on this website should be considered legal advice for any specific employer or employment situation. Consult legal counsel before taking any action as a result of information contained herein.