Rest Breaks and Meal Breaks
California law provides most employees with the right to have an unpaid 30-minute meal period if they work more than 5 hours, and the right to have at least one paid ten-minute rest break if they work at least 3.5 hours in a day, and a second paid ten-minute break if they work at least 6 hours. If you have more questions, or want to learn more, please read the below factsheet or reach out to our workers’ rights clinics.
1. Does my employer have to provide me a meal break?
Most likely, yes. Employers must provide all non-exempt employees the opportunity to have a thirty-minute meal period if they work more than five (5) hours. (Certain special rules apply for the motion picture industry.) An employee may agree with the employer not to take a meal break if the employee works six (6) hours or less.
When an employer provides a meal period, the employer does not need to make sure that no work is performed. But to provide a meal period, an employer must relieve its employees of all duties and obligations and allow the employee to use the meal period as the employee wants. (Limited exceptions to this rule are discussed in question 4.) If an employer pressures an employee to work during a meal period or creates obligations that make it difficult to take a meal period, then the employer is not meeting its obligation to provide an uninterrupted meal period to its employees. Normally, employers do not need to pay their workers during the meal period.
If an employee works for more than ten (10) hours, then the employee is entitled to two thirty (30) minute meal breaks. An employee can give up the second meal break if she works less than twelve (12) hours and took the first meal break.
|Work period||Five hours or less||More than 5 hours to 6 hours||More than 6 hours to 10 hours||More than 10 hours to 12 hours||More than 12 hours|
|Employer Obligations to Provide Meal Period(s)||No obligation to provide meal period||Employer must provide a 30-minute meal period no later than the start of the sixth hour of work, but employee can agree with employer not to take a meal period.||Employer must provide one 30-minute meal period by the start of the sixth hour of work.||Employer must provide first 30-minute meal period by the start of the sixth hour of work, and second 30-minute meal period by the start of the eleventh hour of work. Employee can agree to waive second break only.||Employer must provide first 30-minute meal period by the start of the sixth hour of work, and second 30-minute meal period by the start of the eleventh hour of work.|
2. Does my employer have to give me rest breaks during work?
In most circumstances, yes. Employers must “authorize and permit” almost all non-exempt employees to take a ten (10) minute rest break if they work at least 3.5 hours in a day. Non-exempt employees who work at least 6 hours a day must be permitted to take two ten (10) minute rest breaks, and non-exempt employees who work at least 10 hours must be permitted to three ten (10) minute rest breaks. (In other words, employees are permitted one rest break for every four hours worked, or major fraction thereof, so long as they work at least 3.5 hours.) Insofar as practicable, employers should allow employees to take these breaks during the middle of each four-hour period, but employers have some flexibility if the nature of the work prevents an employer from allowing a break in the middle of the four-hour period.
3. Does my employer have to pay me for my meal periods or rest breaks?
Employers always have to pay employees during their ten-minute rest breaks.
Employers usually do not need to pay employees during their meal periods, but must pay their employees if employees have to stay on premises or remain “on duty.”
4. Can I be required to stay on premises, on call, or on duty during a meal period?
Usually no. Most employees cannot be required to stay on premises during a meal period. An “on duty” meal period is only allowed if (1) the type of work performed prevents an employee from being relieved of all duty and the employee and (2) employer enter into a written agreement allowing for an on-the-job paid meal period. When a meal period is “on duty,” the employer must pay the employee. (Some healthcare workers can be required to stay on premises during an off-duty meal period.)
5. Can I be required to stay on premises, on call, or on duty during a rest break?
No. On-call or on-duty rest breaks are not a rest break. An employer must permit the employee to completely disengage from work and allow employees to control how they spend the entire ten-minute break. Employees cannot be required to stay on premises during the break, or required to keep a radio, check their phone, or otherwise continue to work.
6. What happens if my employer does not provide me with a legally compliant meal period or a rest break?
Unfortunately, some employers do not provide employees with rest breaks or meal periods. In other instances, employers provide an employee with a meal period that is too short or too late in the workday. When an employer does not comply with the meal period requirements or the rest break requirements, it must pay a “premium wage” of one additional hour of pay at the employee’s regular rate of pay. (If an employer does not provide rest breaks and meal periods, the employer must pay two hours of pay at the employee’s regular rate of pay.)
If you are not given a rest break or a meal break and your employer refuses to pay the premium pay, you can file a claim with the California Division of Labor Standards Enforcement (also known as the “Labor Commissioner”) to recover the premium pay. You can recover your premium pay for up to three years before the date that you file your Labor Commissioner claim. To help prove your case, you should keep your own written records of every day you are not given a meal or rest break.
7. Does my employer have to keep track of whether I took a meal period?
Yes. Employers have to keep time records of when non-exempt employees are provided their meal periods. If an employer fails to keep time records, there is a presumption that the employer did not provide the meal period.
Employers generally do not need to keep time records of when employees take a rest period unless you are paid by the piece you produce (as opposed to per hour worked).
8. Does my employer have to make sure I don’t work during my meal period?
No, an employer is not required to ensure that no work is performed. But to provide a meal period, an employer must relieve its employees of all duties and obligations to the employer and allow the employee to use the meal period as the employee wants (except as discussed in question 4). If an employer pressures its employees to work during their meal period or creates obligations that make it difficult to take a meal period, then the employer is not meeting its obligation to relieve employees of all duties and obligations.