A lunch break is not much of a break if you are still answering the phone.
Neither is a ten-minute rest break if your supervisor expects you to keep an eye on your email.
California law provides many nonexempt employees with meal and rest periods during the workday. But simply putting a break on the schedule—or automatically recording one on a timecard—does not necessarily mean an employer has met its obligations.
So what are California employees generally entitled to, and what can count as a meal or rest break violation? To learn more about your rights, contact our experienced San Diego, CA employment lawyers.
What Meal Breaks Are California Employees Entitled To?
In general, California employees who work more than five hours in a day must be provided with a meal period of at least 30 minutes. The first meal period generally must begin no later than the end of the employee’s fifth hour of work.
Employees who work more than ten hours generally must be provided with a second 30-minute meal period.
There are exceptions and circumstances in which certain meal periods can be waived. But for a typical off-duty meal period, an employer must relieve the employee of all duties and give the employee a reasonable opportunity to take an uninterrupted break.
In other words, calling something “lunch” does not necessarily make it a compliant meal period.
What Can Count as a Meal Break Violation?
Potential meal-period problems can include:
- Not providing a required meal period;
- Providing the meal period too late;
- Providing less than 30 uninterrupted minutes;
- Requiring an employee to continue working during the meal period;
- Interrupting the break with work-related tasks;
- Automatically deducting a meal period even though the employee actually worked through it; or
- Pressuring or discouraging employees from taking the meal periods to which they are entitled.
Consider an employee whose timecard automatically deducts 30 minutes for lunch every day.
On paper, the employee took lunch.
But if that employee regularly spends those 30 minutes answering calls, helping customers, responding to a supervisor, or otherwise performing work, the timecard may not tell the whole story.
What About Rest Breaks?
Rest periods work differently.
California employers generally must authorize and permit nonexempt employees to take a paid 10-minute rest period for every four hours worked or major fraction thereof. Employees who work less than three-and-a-half hours in a day generally are not entitled to a rest period.
When practical, rest periods should occur near the middle of each work period.
And unlike an unpaid meal period, a rest break is paid time. An employer should not require an employee to clock out for a legally required rest period.
What Can Count as a Rest Break Violation?
Potential problems can include:
- Not allowing employees to take required rest breaks;
- Requiring employees to work through their breaks;
- Requiring employees to remain on call or perform work-related duties during a break;
- Deducting rest-break time from an employee’s pay; or
- Creating workloads or schedules that effectively prevent employees from taking their breaks.
The practical question is not merely whether the employee handbook says you get breaks.
Can an Employee Choose to Skip a Break?
This is where the distinction between providing a break and forcing someone to take it matters.
For meal periods, an employer generally must relieve the employee of all duty, relinquish control over the employee’s activities, and provide a reasonable opportunity to take an uninterrupted 30-minute break. The employer cannot pressure or encourage employees to skip legally required meal periods.
But an employer generally does not have to police an employee who has genuinely been relieved of duty to make sure the employee does no work whatsoever.
There is an important catch: if the employer knows or has reason to know that the employee is working during the meal period, the employee must still be paid for that work.
What Happens if Your Employer Does Not Provide Required Breaks?
When an employer fails to provide a legally required meal period, the employee may be entitled to one additional hour of pay at the employee’s regular rate of pay for that workday.
A failure to provide required rest periods can also result in an additional hour of pay at the employee’s regular rate for that workday.
If you believe your employer is not providing required breaks, consider keeping records of:
- Your work schedule;
- Clock-in and clock-out times;
- Recorded meal periods;
- Paystubs and wage statements;
- Messages or instructions requiring you to work during breaks; and
- Your own notes about missed, late, short, or interrupted breaks.
A break that exists only on a schedule or timecard is not necessarily the same thing as a break you were actually permitted to take.
If you believe your employer has denied you required meal or rest periods, an experienced Los Angeles, CA employment attorney can review your work schedule, time records, and workplace practices and help you understand what compensation or other remedies may be available.