California law requires periodic paid rest periods and meal breaks for non-exempt workers. Under California Industrial Welfare Commission (IWC) Wage Order 11090, employers must provide:

1. 10 minutes of paid rest time for every four (4) hours worked (or a major fraction thereof).
2. A first 30-minute unpaid meal period beginning within five (5) hours from the start of the work shift.
3. A second 30-minute unpaid meal period if an employee works more than 10 hours in a day.

• • The second meal period may be waived for workdays lasting 10-12 hours, but only with the employee’s written consent.
  • Rest periods must be a “net” 10 minutes, meaning the break does not begin until the employee reaches an area away from the worksite that is appropriate for rest.

Under the wage order, as under the statute, an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.” Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1049 (2012); see Cal. Lab. Code § 512(a).

In Brinker, the California Supreme Court interpreted the meal period provisions of Cal. Lab. Code § 512(a) and Cal. Wage Order 5-2001, § 11, holding that to “provide” a meal period, employers must relieve employees of all duty. During that time, employees must be “free to come and go as they please.”

If an employer relieves an employee of all duty but the employee continues working, the employer is not liable for meal period premium pay but must compensate the employee for the time worked.

Additionally, the employer must:

• Relinquish control over the employee’s activities.
• Permit a reasonable opportunity for an uninterrupted 30-minute meal period.
• Not impede or discourage employees from taking their meal period.

It is not enough for an employer to simply make meal periods “available.” Even if a company has a formal policy providing for meal periods, it violates the law if it creates incentives to forgo or otherwise encourages skipping meal periods. Id.

If a work period of six hours or less will complete the workday, the meal period may be waived entirely by mutual consent of the employer and employee. Cal. Lab. Code § 512. In this situation, there is no requirement that the waiver be in writing.

An employer may not require an employee to work more than 10 hours in a workday without providing a second meal period. However, this second meal period may be waived if:

• The total hours worked that day do not exceed 12 hours.
• The employer and employee mutually consent to the waiver.
• The first meal period was not waived.

Cal. Lab. Code § 512.

COLLECTIVE BARGAINING EXCEPTIONS

Cal. Lab. Code § 512 has been amended to exempt certain employees in specific industries and occupations from the meal period requirements of § 512(a) when a collective bargaining agreement meets certain criteria.

1. Wholesale Baking Industry

Section 512(c) states that the meal period requirements of Section 512(a) do not apply to employees in the wholesale baking industry who:

(a) Are subject to an Industrial Welfare Commission (IWC) Order; and
(b) Are covered by a valid collective bargaining agreement (CBA) that provides:

• • A 35-hour workweek consisting of five seven-hour days;
  • Overtime pay at 1.5 times the regular rate for hours worked beyond seven per day; and
  • A rest period of at least 10 minutes every two hours.

This amendment became effective on January 1, 2003.

2. Motion Picture and Broadcasting Industries

The meal period provisions of Section 512(a), Section 226.7, and IWC Wage Orders 11 and 12 do not apply to employees in the motion picture and broadcasting industries who are covered by a valid collective bargaining agreement (CBA) that:

• • Provides for meal periods; and
  • Includes a monetary remedy if the employee does not receive a meal period as required by the agreement.

This exemption applies only when the CBA explicitly meets these conditions.

3. Construction Occupation, Commercial Drivers, certain Security Services Industry employees, and Employees of Certain Utilities

The meal period provisions of Sections 512(a) and (b) do not apply to certain employees covered by a valid collective bargaining agreement (CBA).

CBA Exception Under Cal. Lab. Code §§ 512(e) and (f)

The CBA exception outlined in Cal. Lab. Code §§ 512(e) and (f) applies only to employees in the following industries and occupations:

• Construction occupations
• Commercial drivers
• Certain employees of security firms registered under Chapter 11.5 of the Business & Professions Code
• Employees of electrical, gas, and publicly owned electric utilities

 

Conditions for the Exception to Apply

The meal period exemptions under Sections 512(e) and (f) apply only if:

1. The employee is covered by a valid collective bargaining agreement; and
2. The CBA explicitly provides for:
   • Wages, hours of work, and working conditions of employees
   • Meal periods for covered employees
   • Final and binding arbitration of disputes related to meal period provisions
   • Premium wage rates for all overtime hours worked
   • A regular hourly wage of at least 30% more than the state minimum wage
3. Other Collective Bargaining Agreements

“Except for the exemptions outlined above, there is no exception to the meal period requirement for employees based on a collective bargaining agreement (CBA).” Cal. Lab. Code § 514.

HEALTH CARE WORKER MEAL BREAK WAIVER EXCEPTION

“Notwithstanding any other provision of this order, employees in the health care industry who work shifts exceeding eight (8) hours in a workday may voluntarily waive one of their two meal periods.

For the waiver to be valid, it must:

• Be documented in a written agreement voluntarily signed by both the employee and employer.
• Allow the employee to revoke the waiver at any time by providing the employer at least one (1) day’s written notice.
• Ensure that the employee is fully compensated for all working time, including any on-the-job meal period, while the waiver is in effect.

Cal. Wage Order 4-2001, § 11(D).

PAYMENT FOR WORK PERFORMED DURING MEAL PERIOD

An employee who elects to work during a meal period must:

• Be paid for all hours worked, including the appropriate overtime premium if the work performed during the meal period results in daily or weekly overtime accrual.
• Have their employer accurately record all hours worked, including time worked during meal periods, and properly report all such time on wage statements.

Cal. Lab. Code § 226(a).

On-Duty Meal Periods

If an employee is relieved of all duties but not free to leave the workplace during their meal period, the meal period is considered on-duty time and remains under the employer’s control, constituting hours worked.

Bono Enterprises v. Labor Commissioner, 32 Cal.App.4th 968 (1995).

Meal Periods for Exempt Employees

• Cal. Lab. Code § 512 requires employers to provide meal periods but does not exclude any class of employee from this requirement.
• While exempt employees appear to be entitled to meal periods under § 512, the premium pay penalty under Cal. Lab. Code § 226.7 applies only if the meal period is required by the applicable IWC Order.
• Since IWC Orders specifically exclude exempt employees from meal period requirements, employers are not liable for premium pay if they fail to provide a meal period to an exempt employee.

HEALTH CARE WORKER EXCEPTION TO PAYMENT FOR WORK PERFORMED DURING MEAL PERIOD:

CAVEAT: Health Care Industry Exception

IWC Wage Orders 4 and 5 include a “Health Care Industry” exception, which states that “hours worked” must be interpreted in accordance with the Fair Labor Standards Act (FLSA). As a result, for employees in the health care industry, the provisions of 29 CFR § 785.19(b) apply, and the ruling in Bono Enterprises does not.

Remedy for Failure to Provide a Meal Period

The remedy for violating an IWC-mandated meal period requirement is:

“One additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”

Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1256 (2012).

If an employee is unlawfully denied a meal period, their right to the premium wage immediately vests, and they are entitled to the additional pay without making a demand for it.

Safeway, Inc. v. Superior Court, 238 Cal.App.4th 1138 (2015).

Meal Period Waivers and Exceptions

• An employee is entitled to premium wages if they are unlawfully denied a meal period.
• Waiving a meal period does not entitle an employee to premium pay; instead, the employee is compensated at their regular hourly rate for the time worked.
• Certain meal period waiver exceptions apply to specific industries with unique regulations.

For assistance or more information regarding meal periods, meal period waivers, and premium pay, contact the employment attorneys at San Diego Biz Law, APC.

The material in this article, provided by San Diego Biz Law, APC, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes.