The relevant California Wage Orders mandate that employers must provide:
- A first 30-minute unpaid meal period beginning within five (5) hours from the start of the work shift.
- A second 30-minute unpaid meal period if more than 10 hours are worked in a day.
See IWC Wage Order 11090; Cal. Lab. Code § 512(a); see also Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1049 (2012).
In Brinker, the California Supreme Court interpreted the meal period provisions of Cal. Lab. Code § 512(a) and Cal. Wage Order 5-2001, section 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 has relieved an employee of all duty but the employee continues to work, the employer is not liable for meal period premium pay but must compensate the employee 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 for an employer to simply make meal periods ‘available.’ Even if an employer has a formal policy of providing meal periods, it is a violation if the employer creates incentives to forgo or otherwise encourages employees to skip their meal periods. Id.
If an employer fails to relieve an employee of all duty during their thirty-minute meal period, the meal period is considered an ‘on-duty’ meal period. An on-duty meal period counts as hours worked and must be compensated.
If an employer fails to provide a meal period in accordance with the relevant IWC Wage Orders, the employer must pay the employee one (1) hour of pay at their regular rate of compensation for each workday that a compliant meal period is not provided. See Cal. Wage Order 4-2001, § 11(B); Cal. Lab. Code § 226.7; Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007).
The California Supreme Court in Murphy held that employees are entitled to an additional one hour of wages for each day their employer fails to provide a compliant meal break or rest period. This premium pay is classified as a ‘wage’ under Cal. Lab. Code § 200.
Additional Workplace Meal Requirements
- In all workplaces where employees are required to eat on the premises, a suitable designated eating area must be provided.
- This requirement does not apply to employees in the construction, drilling, logging, or mining industries. However, employers in these industries must provide employees with:
- An adequate supply of potable water
- Soap or another suitable cleansing agent
- Single-use towels for handwashing
For assistance or more information regarding meal periods and premium pay, contact the employment attorneys at San Diego Biz Law, APC.
