An employee who works for more than five hour must be provided an unpaid, off-duty meal of at least 30 minutes.
Employees Should Not Be Discouraged from Taking the Meal Break
Employers should not discourage employees from taking their meal breaks by using indirect methods such as rebuke, derision, enticements or pressure. All of these could be considered violations
If the way that you schedule your employees impedes their taking breaks, this could also be considered by the courts to be the discouragement of meal breaks resulting in a violation. In Brinker Restaurant Corporation v. Superior Court
the court stated:
A pattern or practice of allowing employees to work through or otherwise miss their meal breaks exposes you to expensive litigation. The better solution is to explain to employees and supervisors what the law requires and remind them that it is the company's responsibility to ensure the law is followed.
An example of this would be a company that did not have a stated policy that told the employees that they could take a meal break. And even worse if the company did not schedule their employees to facilitate their meal breaks or used pressure to discourage meal breaks.
What are On-Duty Meal Breaks?
In some types of situations, employees may be able to take on-duty meal breaks.
An on-duty meal break must meet all of the following conditions:
- The work conditions make it impossible from being relieved of all duties
- The employer and the employee must agree in writing
- The On-duty meal must be paid, rather than unpaid
- The employee may revoke the agreement at any time in writing, except under Wage Order 14
On-duty meal breaks that do conform to these rules would not be considered lawful. The employee would be paid one hour of premium pay. Prior to considering on-duty meal breaks, check with legal counsel.
An on-duty meal break that meets all the legal conditions cannot be considered a waiver of the employee's meal break. The employee must be paid for it. Keep this in mind if an employee works a 10-12 hour shift. It is illegal for an employee to waive the second meal break, which is required by law, if they have already waived their first meal break. If an employee takes a lawful on-duty meal break, they may waive their second meal break and they don’t need to be paid the additional hour of pay for a missed meal break.
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.