This is the most comprehensive webpage on meal break law in California
You just aren't going to find all of the law that I lay out here anywhere else. Nothing else is even close. How do I know this? Because I actually looked.
As I lay out in some depth, California meal break law comes from three main places - California Labor Code Section 512, the California Wage Orders and the landmark case on meal breaks by the California Supreme Court. I represented the workers in the Brinker case, so I have an "insider's view" of meal period law in California.
California meal break law
What are an employer's duty to provide meal breaks in California?
1. It relieves you of all duty,
2. Relinquishes control over you activities and
3. Permits you a reasonable opportunity to take an uninterrupted 30-minute break, and
4. Your employer does not impede or discourage you from doing so.
Brinker vs. Superior Court
Bill Turley represented the workers in the landmark
California Supreme Court case -
Brinker vs Superior Court
Bill represented the workers in the 2012 groundbreaking California Supreme Court case - Brinker vs. Superior Court
Many people say that the Brinker case is the most important California Supreme Court wage and hour case in years (if not ever).
One of the worker protection concepts in the Brinker decision that keeps getting repeated again and again:
“When construing the California Labor Code, California courts are to adopt the construction that best gives effect to the purpose of the Legislature and Industrial Welfare Commission (IWC). The purpose of these laws is the protection of workers. In furtherance of that purpose, California courts are to liberally construe the Labor Code and Wage Orders to favor protection of workers.”
As you read this webpage on meal break law in California, you will see references again and again to the great law made for California workers in the Brinker case. I can't tell you how proud I am to have represented the workers in the Brinker case. It was a long battle. We went to the California Supreme Court and to the California Court of Appeals three times in fighting the Brinker case. You and every employee in California has benefited from this historic decision. I am privileged to be a part of this powerful history.
Where California meal period law is found - California Labor Code Section 512 and the California Wage Orders
California law on meal period/ meal breaks are found two places. First, California Labor Code Section 512.
Second, the California Wage Orders.
What is a “facially unlawful” meal break policy?
If your employer has a written meal break policy that doesn’t comply with California law, then it is called a “facially unlawful” meal break policy. Meaning, a meal break policy that “on its face” is illegal. Meaning that it doesn’t comply with California Labor Code Section 510 and/or the relevant Wage Order.
For example, we have seen written meal break policies that don’t have a provision for a second meal break at 10 hours. This is a “facially unlawful” meal break policy.
Generally in an wages class action case one of the first things we ask for in the discovery process (the part of the case where the company has to produce documents to us) is all of the company's wage and hour policies, employee manuals and the like. Then we do an analysis of the documents in order to determine whether they first have written wage and hour policies and if they do, whether they are "facially unlawful."
What if I'm not getting meal breaks / lunch breaks?
One of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt.
He is known for being no B.S., with no lawyer-talk, no double-talk.
You have to be free to do anything you want to do during your meal period
Why do we continue to win wage theft class actions? Because we get the nuances in the law.
You have to look for the edges. They don’t. You have to be willing to think with some imagination. They surely don’t. The reason why I know this is that I keep seeing these other firms in cases and I have to think that most of these lawyers just don't get it.
I know I keep coming back to the Brinker case. It might sound old to you by now. It doesn’t for my clients. Why? Because I put money in their pockets because I refuse to let go. So, here I go again.
If you are not free to leave the premises during your meal break - then you didn’t get a duty free meal break.
In Brinker, the court instructed that for purposes of class certification, the focus must be on the policy the plaintiffs are challenging and whether the legality of that policy can be resolved on a classwide basis. Brinker, at pp. 1023–1024. The Brinker court then considered the scope of an employer's duties under the relevant statutes and the IWC wage orders to afford rest and meal periods to employees. Brinker at pp. 1027–1028.
Regarding the meal period claim, the Brinker court concluded that “an employer's obligation when providing a meal period is to relieve its employee of all duty for an uninterrupted 30-minute period” and that an employee “‘must be free to attend to any personal business he or she may choose during the unpaid meal periods’” Brinker at pp. 1038, 1036. Thus, the employee must be free to leave the premises. Brinker pp. 1038, 1036.
What does this really mean?
If you have any duties whatsoever during your meal break - then you didn’t get a meal break. 30 minuted uninterrupted meal break is exactly what it sounds like it is. But even more.
Meal break timing and our confidential, free, no obligation unpaid wages analysis
Under California Wage and Hour law, any hourly employee working a shift of at least five hours must receive an unpaid 30-minute meal period. You are entitled to a second meal break if you work 10 hours.
This is where an unpaid wages analysis comes in. When we conduct a confidential, free, no obligation unpaid wages analysis, one of the things we are doing is comparing your time keeping records to your pay stub records. We are seeing if you are being paid an hour's pay when your meal break is taken before the 5th hour and a second meal break before the 10th hour.
I suggest that you claim your confidential, free, no obligation unpaid wages analysis. We go through a comprehensive review in order to determine how much in unpaid wages you are owed.
It is just that. Confidential. Free. No Obligation.
Meal period waivers in California
If you signed a meal period waiver, then you have two strong potential arguments to defeat the meal period waivers. First, that like the California DLSE has found, blanket meal period waivers are not valid. You must waiver your meal period on a shift by shift basis.
Second, the meal period waiver is not facially valid if it doesn=t explain your rights to meal periods under California law. It is my contention, that it must explain your right to a meal period, the timing of meal periods and the four duties of an employer to provide meal periods under the landmark Brinker case
What Your Employer Can (and Cannot) Do During Your Meal Break
- Your employer cannot demand that you respond to cell phone calls, texts, questions from coworkers or clients, or be available to the business in any way.
- Your employer must completely relieve you of all work duties and ensure that you are free to leave the work premises if you wish.
- If your employer fails to you provide a meal period, you are entitled to one hour's wages at your regular rate of pay for each day that a meal period was not provided.
- If your employer requires you to remain at the job site during breaks, but still requires you to clock out, you are entitled to payment at your regular rate of pay for the meal period plus the premium of one hour's pay.
- If you have not received meal breaks or premium compensation for breaks that weren’t provided, you are entitled to back pay of one hour's pay per day.
What Can You Do If Your Employer Refuses to Pay?
Even if you told your employer that you voluntarily gave up your break, he still owes you for any time you continued working. If you were not allowed to take breaks, or were told to clock out but stay on-site, you are entitled to back payments and interest for the wage violation. And an hour's pay because you weren't provided a legally compliant meal break.
Bill Turley is regularly asked to testify before the California legislature as an expert on California wage law.
What if my employer doesn’t have a meal period policy?
So what happens then? We have talked about employers with “facially unlawful” meal period policies. Meaning, the written meal period policy they have is unlawful - meaning that it somehow doesn’t conform with Labor Code Secton 512 and/or the Wage Order for the industry. But what about employers that have no written meal break policies? That is, an absence of a meal period policy.
Cases after Brinker, have significantly clarified the law with respect to certification of meal and rest period classes when the company has no meal break policy.
The court of appeals in Bradley agreed with the employer on this before the Brinker decision was issued. Then after the Brinker decision, the Bradley court changed it’s position on this and the Bradley court held:
Moreover, as Brinker made clear, an employer is obligated to provide the rest and meal breaks, and if an employer does not do so, the fact that an employee did not take the break cannot reasonably be considered a waiver. “No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.” (Brinker, at 1033.)
In summary, first, if your employer has no meal period policy, you can’t waive what you didn’t get. Second, the argument that some workers actually took a meal break goes to damages, and does not prevent class certification.
Nevertheless, there are some Federal District Courts that still don’t certify “absence of policy” case by taking the convoluted view that it is still “individualized issues” concerning whether workers actually took a meal break, even if they weren’t authorized by a written policy.
Employer’s have a duty to record meal periods and when there is no record of a meal break taken - the law assumes that you didn’t get a meal period and the burden shifts (this is very, very important)
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Bill Turley was called California's Leading Wage and Hour Class Action Lawyer by
San Diego Attorney Journal
The employer has the burden of proving that an employee waives the opportunity to have a work-free break
Many employers have an automatic deduction for meal periods. It is essentially a policy whereby thirty minutes are automatically deducted from the employees' paychecks based on the assumption that they take half-hour meal breaks.
We have seen this a lot with trucking and delivery companies, but other employers sometimes have what are called “auto-deduct” or “auto meal deduct” policies.
Most court's will certify auto-deduct meal period policies and practices.
Villa v. United Site Servs. of Cal., Inc., 2012 U.S. Dist. LEXIS 162922, *17, 2012 WL 5503550.
Finally, you need to know that every case is different. Just because we have gotten great results in so many unpaid wages class actions doesn't guarantee any particular result in any other case. Like I always say, there are no guarantees in life or law.