California has state-specific rules that require employers to provide meal periods to employees and set the conditions under which the meal periods must be provided. To help you understand these obligations, we address some common misconceptions about meal periods in California.
Myth #1: California employers can provide meal periods at any point in the employee's shift.
Fact: In California, employers must provide employees the opportunity to take an uninterrupted 30-minute meal period after no more than five hours of work, unless the total workday is less than six hours and the employer and employee mutually consent to waive the meal period. The meal period must begin before the end of the fifth hour of work, and the employee must be relieved of all duty during any state-mandated meal period. If the employee isn't relieved of all duty during the 30-minute meal period, the meal period counts as hours worked, which must be compensated at the employee's regular rate of pay.
California law also requires employers to provide employees with a second, uninterrupted meal period of at least 30 minutes if an employee works more than 10 hours per day. If an employee works no more than 12 hours, the employer and employee may mutually agree to waive the second meal period, but only if the first meal period was not waived. To satisfy the second meal period requirement, the employee must begin the meal period before the end of the tenth hour of work.
Myth #2: The premium pay required for failing to provide meal periods in accordance with state rules is one hour of pay at the state's minimum wage.
Fact: If an employer fails to provide a compliant meal break by the end of the fifth (and tenth) hour, they must provide one additional hour of pay at the employee's regular rate for each workday that the meal period isn't provided. This is often referred to as premium pay.
Myth #3: To provide a meal period in accordance with state rules, employers must ensure that employees actually take a meal period and no work is performed, or they'll be subject to the premium pay.
Fact: Under California law, an employer isn't required to ensure that no work is performed to avoid the premium pay. Rather, you must provide employees with a bona fide opportunity to take a meal period that meets the state's requirements. If employees voluntarily use the meal period for other purposes, they would be entitled to pay for any time spent working but wouldn't be entitled to premium pay.
Myth #3: California employers can comply with the requirement to provide employees with the opportunity to take a meal period by telling them that a meal period is available.
Fact: In general, to satisfy the state's meal period requirements, you must actually relieve employees of all duty, relinquish control over their activities, give them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please), and must not impede or discourage employees from taking their meal period. Employers are prohibited from undermining a formal policy of providing meal periods by pressuring employees to perform their duties in ways that omit breaks.
Myth #4: California employers can require employees to remain on the premises during unpaid meal periods.
Fact: If you require that an employee remain on the premises during their meal period, you must pay the employee for the meal period and provide the premium pay. There's a limited exception under which an "on duty" meal period is permitted but only if:
- The nature of the work prevents an employee from being relieved of all duty; and
- There's a written agreement between the employer and employee for an on duty meal period. In such cases, the meal period must be paid but no premium pay is due.
Myth #5: California employers can round time for the purposes of tracking meal periods.
Fact: The California Supreme Court recently ruled that employers are prohibited from using rounding practices when tracking whether meal periods are provided in compliance with state requirements. In the case, the employer rounded time punches to the nearest 10-minute increment for purposes of calculating work time. For example, if an employee clocked out for lunch at 11:02 a.m. and clocked in after lunch at 11:25 a.m., the employer would have recorded the time punches as 11:00 a.m. and 11:30 a.m. Therefore, even though the actual meal period was 23 minutes, the employer would have recorded the meal period as 30 minutes.
The Court held that because California requires strict compliance with state meal period requirements, a rounding policy applied to meal periods was prohibited, as it could lead to employees receiving meal periods under 30 minutes. It found that even a seemingly minor infraction, such as an employee receiving a meal period of 28 or 29 minutes, would violate California's meal period requirements. This, in turn, would obligate an employer to provide impacted employees with premium pay. So be sure you're tracking meal periods to the minute.
Conclusion:
Make sure your company is complying with all applicable rules governing meal periods.