MEAL BREAK WAIVERS & PREMIUM PAY
California law requires periodic paid rest periods and meal breaks for non-exempt workers. Under California Industrial Welfare Commission (“IWC”) Wage Order 11090, an employer is required to provide: (1) 10 minutes of paid rest time for every 4 hours worked (or major fraction worked); (2) A first 30-minute unpaid meal period beginning within 5 hours from the start of the work shift; (3) A second 30-minute unpaid meal period if more than 10 hours is worked in a day. The second meal period can be waived for workdays of 10-12 hours if the consent of the employee is given in writing. Rest periods are defined as a “net” 10 minutes, which means that the rest period does not begin until the worker has reached an area away from the work area 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 section 512(a) and Cal. Wage Order 5-2001, § 11, holding that in order 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 has relieved an employee of all duty and if work does continue, the employer, although not liable for meal period premium pay, must pay for the time worked. In addition, the employer must relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute meal period and not impede or discourage an employee from doing so. It is not enough just to make the meal period “available”. Even if an employer has a formal policy of providing meal periods, it will be a violation if the employer creates incentives to forego, or otherwise encourages skipping of, meal periods. Id
If a work period of not more than six hours will complete the day’s work, the meal period may be waived entirely by mutual consent of the employer and employee. Cal. Lab. Code § 512 There is no requirement that the waiver be in writing in this situation.
An employer may not employ an employee for a work period of more than 10 hours in a workday without providing a second meal period. This second meal period may be waived if the total hours of work are no more than 12 hours and the first meal period has not been waived. An employee can waive their second meal period only if all of the following conditions are met: (1) the total hours worked on that workday are not more than 12; (2) you and the employee mutually consent; and (3) the first meal break of the workday was not waived. Cal. Lab. Code § 512.
COLLECTIVE BARGAINING EXCEPTIONS
Cal. Lab. Code section 512 has been amended to except certain employees in specified industries and occupations from the meal period requirements of section 512(a) where collective bargaining agreements meet certain requirements.
- Wholesale Baking Industry
Section 512(c) provides that Section 512(a) does not apply to employees in the wholesale baking industry who are: (a) subject to an Industrial Welfare Commission Order and (b) covered by a valid collective bargaining agreement (CBA) that provides (1) for a 35-hour workweek consisting of five seven-hour days and (2) payment of 1 and ½ the regular rate of pay for time worked in excess of seven hours per day and (iii) a rest period of not less than 10 minutes every two hours. This amendment was effective 1/1/2003.
- 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 industry and the broadcasting industry that are covered by a valid collective bargaining agreement that: (1) provides for meal periods and (2) includes a monetary remedy if the employee does not receive a meal period required by the agreement.
- Construction Occupation, Commercial Drivers, certain Security Services Industry employees, and Employees of Certain Utilities
The meal period provisions of Section 512(a) and (b) do not apply to a limited sector of employees that are covered by a valid collective bargaining agreement.
The CBA exception provided by Cal. Lab. Code sections 512(e) and (f) applies only to employees in a construction occupation, commercial drivers, certain employees of security firms registered pursuant to Chapter 11.5 of the Business & Professions Code, and employees of electrical, gas, and publicly owned electric utilities.
The Section 512(e) and (f) exceptions to the Section 512(a) and (b) meal period requirement apply only if: (1) The employee is covered by a valid collective bargaining agreement; (2) The valid collective bargaining agreement (a) expressly provides for the wages, hours of work, and working conditions of employees; (b) expressly provides for meal periods for those employees; (c) final and binding arbitration of disputes concerning application of its meal period provisions; (d) premium wage rates for all overtime hours worked; and (e) a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.
- Other Collective Bargaining Agreements
There is no exception to the requirement for meal periods for employees on account of a CBA other than those provided above. 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 in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day’s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a 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 and be compensated for all hours worked with payment of the appropriate overtime premium if work performed during a meal period results in accrual of daily or weekly overtime. An employer has the obligation to accurately record all hours worked, including those worked during a meal period, and must properly report all such time on wage statements. Cal. Lab. Code § 226(a).
Where an employee – although relieved of all duties – is not free to leave the work place during the time allotted to such employee for eating a meal, the meal period is on duty time subject to the control of the employer, and constitutes hours worked. Bono Enterprises v. Labor Commissioner, 32 Cal.App.4th 968 (1995).
NOTE: Cal. Lab. Code section 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Cal. Lab. Code section 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal period requirement. Thus, no premium pay may be imposed on an employer who fails to provide a meal period to an exempt employee.
HEALTH CARE WORKER EXCEPTION TO PAYMENT FOR WORK PERFORMED DURING MEAL PERIOD:
CAVEAT: Orders 4 and 5 contain a “Health Care Industry” exception which provides that “hours worked” is to be interpreted in accordance with the provisions of the Fair Labor Standards Act. This means that for the employees engaged in the “health care industry” the provisions of 29 CFR § 785.19(b) WOULD apply, and the Bono Enterprises case would have NO applicability.
The remedy for a violation of the statutory obligation to provide IWC-mandated meal periods 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). When unlawfully denied a meal period, an employee’s interest in the premium wage vests, and the employee is immediately entitled to the premium wage without making a demand for it. Safeway, Inc. v. Superior Court, 238 Cal.App.4th 1138 (2015).
Therefore, an employee is entitled to premium wages upon the unlawful denial of a meal period. Waiver of a meal period does not provide for a premium, but rather, an employee is entitled to their hourly compensation for the time worked. However, certain meal period waiver exceptions apply to a variety of nuanced industries.
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.
MEAL BREAK WAIVERS & PREMIUM PAY
California law requires periodic paid rest periods and meal breaks for non-exempt workers. Under California Industrial Welfare Commission (“IWC”) Wage Order 11090, an employer is required to provide: (1) 10 minutes of paid rest time for every 4 hours worked (or major fraction worked); (2) A first 30-minute unpaid meal period beginning within 5 hours from the start of the work shift; (3) A second 30-minute unpaid meal period if more than 10 hours is worked in a day. The second meal period can be waived for workdays of 10-12 hours if the consent of the employee is given in writing. Rest periods are defined as a “net” 10 minutes, which means that the rest period does not begin until the worker has reached an area away from the work area 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 section 512(a) and Cal. Wage Order 5-2001, § 11, holding that in order 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 has relieved an employee of all duty and if work does continue, the employer, although not liable for meal period premium pay, must pay for the time worked. In addition, the employer must relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute meal period and not impede or discourage an employee from doing so. It is not enough just to make the meal period “available”. Even if an employer has a formal policy of providing meal periods, it will be a violation if the employer creates incentives to forego, or otherwise encourages skipping of, meal periods. Id
If a work period of not more than six hours will complete the day’s work, the meal period may be waived entirely by mutual consent of the employer and employee. Cal. Lab. Code § 512 There is no requirement that the waiver be in writing in this situation.
An employer may not employ an employee for a work period of more than 10 hours in a workday without providing a second meal period. This second meal period may be waived if the total hours of work are no more than 12 hours and the first meal period has not been waived. An employee can waive their second meal period only if all of the following conditions are met: (1) the total hours worked on that workday are not more than 12; (2) you and the employee mutually consent; and (3) the first meal break of the workday was not waived. Cal. Lab. Code § 512.
COLLECTIVE BARGAINING EXCEPTIONS
Cal. Lab. Code section 512 has been amended to except certain employees in specified industries and occupations from the meal period requirements of section 512(a) where collective bargaining agreements meet certain requirements.
- Wholesale Baking Industry
Section 512(c) provides that Section 512(a) does not apply to employees in the wholesale baking industry who are: (a) subject to an Industrial Welfare Commission Order and (b) covered by a valid collective bargaining agreement (CBA) that provides (1) for a 35-hour workweek consisting of five seven-hour days and (2) payment of 1 and ½ the regular rate of pay for time worked in excess of seven hours per day and (iii) a rest period of not less than 10 minutes every two hours. This amendment was effective 1/1/2003.
- 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 industry and the broadcasting industry that are covered by a valid collective bargaining agreement that: (1) provides for meal periods and (2) includes a monetary remedy if the employee does not receive a meal period required by the agreement.
- Construction Occupation, Commercial Drivers, certain Security Services Industry employees, and Employees of Certain Utilities
The meal period provisions of Section 512(a) and (b) do not apply to a limited sector of employees that are covered by a valid collective bargaining agreement.
The CBA exception provided by Cal. Lab. Code sections 512(e) and (f) applies only to employees in a construction occupation, commercial drivers, certain employees of security firms registered pursuant to Chapter 11.5 of the Business & Professions Code, and employees of electrical, gas, and publicly owned electric utilities.
The Section 512(e) and (f) exceptions to the Section 512(a) and (b) meal period requirement apply only if: (1) The employee is covered by a valid collective bargaining agreement; (2) The valid collective bargaining agreement (a) expressly provides for the wages, hours of work, and working conditions of employees; (b) expressly provides for meal periods for those employees; (c) final and binding arbitration of disputes concerning application of its meal period provisions; (d) premium wage rates for all overtime hours worked; and (e) a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.
- Other Collective Bargaining Agreements
There is no exception to the requirement for meal periods for employees on account of a CBA other than those provided above. 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 in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day’s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a 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 and be compensated for all hours worked with payment of the appropriate overtime premium if work performed during a meal period results in accrual of daily or weekly overtime. An employer has the obligation to accurately record all hours worked, including those worked during a meal period, and must properly report all such time on wage statements. Cal. Lab. Code § 226(a).
Where an employee – although relieved of all duties – is not free to leave the work place during the time allotted to such employee for eating a meal, the meal period is on duty time subject to the control of the employer, and constitutes hours worked. Bono Enterprises v. Labor Commissioner, 32 Cal.App.4th 968 (1995).
NOTE: Cal. Lab. Code section 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Cal. Lab. Code section 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal period requirement. Thus, no premium pay may be imposed on an employer who fails to provide a meal period to an exempt employee.
HEALTH CARE WORKER EXCEPTION TO PAYMENT FOR WORK PERFORMED DURING MEAL PERIOD:
CAVEAT: Orders 4 and 5 contain a “Health Care Industry” exception which provides that “hours worked” is to be interpreted in accordance with the provisions of the Fair Labor Standards Act. This means that for the employees engaged in the “health care industry” the provisions of 29 CFR § 785.19(b) WOULD apply, and the Bono Enterprises case would have NO applicability.
The remedy for a violation of the statutory obligation to provide IWC-mandated meal periods 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). When unlawfully denied a meal period, an employee’s interest in the premium wage vests, and the employee is immediately entitled to the premium wage without making a demand for it. Safeway, Inc. v. Superior Court, 238 Cal.App.4th 1138 (2015).
Therefore, an employee is entitled to premium wages upon the unlawful denial of a meal period. Waiver of a meal period does not provide for a premium, but rather, an employee is entitled to their hourly compensation for the time worked. However, certain meal period waiver exceptions apply to a variety of nuanced industries.
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.