An employee who works for more than five hour must be provided an unpaid, off-duty meal of at least 30 minutes.
How do the courts define an
Off-Duty Meal Break?
The California Supreme Court stated clear rules regarding meal breaks in
Brinker Restaurant Corp. v. Superior Court
. In this decision, the court spelled out an employer’s requirement to “provide” the meal break, but not “ensure” that the employee does no work.
In this decision, an employer has fulfilled the requirement to provide an
off-duty unpaid meal period
to its employees if the following conditions are met
- The employee has no duties to fulfill
- The employer has no control over their activities (including allowing employees to leave the workplace)
- The employee is allowed a reasonable chance to take a 30-minute break without interruptions
- The employer does not prevent or hamper the employee’s break in any way
When can employees take meal breaks?
The
Brinker
decision also spelled out when meal periods must be taken:
- The first meal break must be provided “no later than the end of the employee’s fifth hour of work.”
- The second meal break must be provided “no later than the end of an employee’s 10th hour of work.”
The definition of “the end of the employee’s fifth hour of work” may be confusing. Does it mean precisely at the five-hour mark or no later than 4 hours and 59 minutes into the employee’s shift? The safest practice would be to schedule the employee’s break no later than 4 hours and 59 minutes into the shift. For example, if the employee starts their shift at 8:00am, their break should be started no later than 12:59pm.
Early lunches may be permitted, but late lunches are not. The demands of the operation are a factor in scheduling employee breaks. If there is a question, it may be wise to consult with legal counsel.
Six Hour Shift Waivers
If an employee’s shift will not be longer than six hours, they may waive their meal period if the employer and the employee both agree to the waiver. A written waiver would definitely be a best practice, but it is not required by law.
CLIA Lodging members can call the FREE CLIA Helpline at 916.925.2915 with questions about meal breaks and other HR, legal and ADA issues.
