Meal & Rest Break Dealbreakers

Many California employers may not give much thought to meal and rest break compliance until they are hit with a lawsuit or what is known as a “PAGA Notice.” While most employers do provide their employees break time to eat, use the restroom, and recharge, they do not always follow California’s strict break requirements. Unfortunately, inadvertent mistakes can lead to massive liability exposure. This is why it is vital for California employers to have strong meal/rest break policies, train supervisors on how to schedule and administer breaks, and understand how to address a missed meal or rest period. Below are the meal/rest rules under most wage orders:

Meal Period Rules

Whenever a non-exempt employee works more than five hours, they are authorized and permitted to take a minimum thirty-minute unpaid, uninterrupted, and duty-free meal period. A second meal period is required if the employee works more than 10 hours. Meal period requirements are illustrated in the chart below:

Number of Hours Worked	Number of Authorized Meal Periods
More than 5, up to 10	1
More than 10	2

There are strict timing requirements for when the meal period must start. The first meal period must begin prior to the employee completing their fifth hour of work. Practically speaking, this means the employee should clock out to begin their meal break no later than 4 hours and 59 minutes into their shift.

The second meal period must begin prior to completing their tenth hour of work.

Rest Break Rules

Employers must ensure non-exempt employees are permitted to take one 10-minute rest break for every four hours they work (or major fraction thereof). The rest break should be duty-free and uninterrupted. The chart illustrates the number of rest breaks based on work hours:

Number of Hours Worked	Number of Authorized 10 Minute Rest Periods
3.5 - 6	1
More than 6, up to 10	2
More than 10, up to 14	3

Unlike the meal period, the rest break is paid time. While there are no strict timing requirements for when the rest break must begin, it generally should be taken approximately halfway through a work period of four or more hours, as close to the middle of the work period as possible.

So, what are the meal and rest break deal breakers that land employers in hot water? Here are some of the most common mistakes:

Dealbreaker #1: Not Following Meal Period Waiver Rules

Meal period waivers unfortunately cause employers a lot of confusion. Start with the rule that an employee is entitled to a meal period if they work more than 5 hours. However, an employee may voluntarily choose to waive the first meal period if they work six hours or less, and the employer and employee mutually agree to the waiver. Do not let the employee waive the first meal period if they work more than six hours.

Similarly, an employee can voluntarily waive the second meal period if they work 12 hours or less, you mutually agree, and the first meal period was not waived.

Always ensure you have a voluntary, written waiver on file for the employee that is clear about their rights.

CEA members may access a Sample Meal Period Waiver here.

Dealbreaker #2: Not Tracking Rest Breaks

Rest breaks are paid time, so employees are not typically clocking in and out for rest breaks. However, this presents a problem for employers if an employee later claims they never received their rest breaks. Without clock in/out records, it will be your word against theirs.

Although not legally required, we highly recommend having employees certify on their timecards or in your payroll system that they received their entitled rest breaks, as well as specify the number of rest breaks taken during their shift.

Dealbreaker #3: Not Relieving Employees of All Duties

Meal and rest breaks should be treated as genuine duty-free periods. This means that employees need to be relieved of all duties. Ensure that supervisors are not interrupting employees with a “quick work question” or task during their break time.

While there are narrow circumstances when an employee may agree to a paid, on-duty meal period, we recommend getting advice on California’s strict on-duty meal period requirements.

Dealbreaker #4: Not Paying Premium Pay

For each workday an employer fails to “authorize and permit” an employee to take a sufficient meal or rest break, the employee is owed one additional hour of pay at the employee’s regular rate of pay (not the base hourly rate of pay). Note that the regular rate of pay takes into account additional forms of compensation beyond the base hourly rate, such as non-discretionary bonuses, commissions, piece rate pay, etc.

According to the California Labor Commissioner, an employee is owed one hour of premium pay to cover all rest break violations in a workday, and one to cover all meal period violations in a workday.

Also, if you fail to authorize and permit a full meal break, be sure to pay the employee for all time worked during the meal break, plus the one-hour penalty.

When applicable, premium pay must be reflected on the wage statement. Typically, it will be labeled “Premium Pay” or “Meal/Rest Penalty.”

CEA is here to help you go from HR confusion to HR clarity. Call us at 800-399-5331