Answers to Commonly-Asked Questions Regarding Meal and Rest Periods

Clients often ask us how they can comply with the state’s complicated meal and rest period rules. Below are some answers to the most commonly-asked questions we receive.

Meal Periods

Q: Do we have to make sure employees take their meal periods?

A: No. Employers must provide a genuine opportunity for employees to take each meal period, but employers are not obligated to ensure that employees take those meal periods.

Q: How long must the meal period be?

A: Each meal period must be at least 30 (uninterrupted) minutes long. The meal period is unpaid time. Therefore, employers must keep records regarding the start and end time of all meal periods.

Q: How many meal periods are employees entitled to take?

A: The number of meal periods an employee is entitled to take depends on the amount of hours the employee works. Employees who work at least five hours but less than ten hours are entitled to one meal period. Employees who work ten hours (or more) are entitled to two meal periods.

Q: Some of our employees like to take one hour for lunch. Is that okay?

A: Yes, the meal period may be longer than 30 minutes. (Note that if an employer requires an employee to take an unpaid meal period that is longer than one hour, the employer may be owe the employee a “split shift” premium, depending the employee’s hourly wage.)

Q: When do meal periods have to be taken?

A: The first meal period must start “after no more than five hours” of work. Therefore, if an employee starts work at 9:00 a.m., the employee must start the first meal period by the time the clock strikes 2:00 p.m. If a second meal period is owed, the second meal period must start after no more than 10 hours of work.

Q: The nature of our business requires that some employees take their meal periods towards the beginning of their shift. Is that okay?

A: Yes. Brinker v. Superior Court makes clear that the only timing requirements for meal periods are that the first one take place after no more than five hours of work, and the second one take place after no more than ten hours of work.

Q: If an employee takes their meal period early in their shift, do we have to provide a second meal period five hours after end of that first meal period even though the employee has not yet worked ten hours?

A: No. The Brinker court clearly rejected this so-called “rolling five hour” meal period theory. There is no obligation to provide a second meal period if the employee has worked less than ten hours.

Q: Is there a particular order in which meal and rest periods must be taken? For example, must the first rest period take place before the first meal period?

A: The Brinker court made it clear that the Wage Orders only require that a rest period be in the middle of a four-hour work period “insofar as practical.” The Court found employers must make a “good faith effort” to allow rest breaks in the middle of each four-hour work period but noted that employers “may deviate from that perferred course where practical considerations render it infeasible.” The Court noted that length of shifts could be one such practical consideration that could render it infeasible to provide rest breaks at the two-hour mark or rest breaks on either side of the meal period. The Court did note that, for an eight-hour shift, “’as a general matter,’ one rest break should fall on either side of the meal period.”

Q: When do we have to pay a meal period “premium” (penalty)?

A: Premium payments must be paid if the employer fails to make a timely, uninterrupted 30-minute meal period “available” to the employee—either through scheduling practices or by requesting or “pressuring” the employee to work during that time. If the employer does not request or pressure the employee to work through the meal period, but knows or has reason to know the employee has done so, the employer must pay the employee for the time worked, but the employer is not liable for a meal period penalty. Below are four different scenarios that capture what could happen and how to compensate employees:

	Employee’s Action	Employer’s Conduct	Compensation Due
1	Employee works through some or all of a meal period.	Employer does not know and has no reason to know employee has worked through meal period.	Employer is not obligated to pay anything for the time employee works during the meal period. (Note: employer may not escape liability by taking a head-in-the-sand approach.)
2	Employee works through some or all of a meal period.	Employer knows or has reason to know employee has done so, but employer did not request the work or pressure the employee to work through the meal period.	Employer must pay employee for the time employee worked, but employer is not liable for the meal period penalty. (Note that if the time worked during the meal period puts the employee into daily or weekly overtime, the overtime hours must be compensated at the appropriate overtime rate.)
3	Employee works through some or all of a meal period.	Employer knows or has reason to know employee has done so because employer requested the work or “pressured” the employee into working through the meal period.	Employer must pay employee both for the time the employee worked, PLUS the meal period penalty. (Note that if the time worked during the meal period puts the employee into daily or weekly overtime, the overtime hours must be compensated at the appropriate overtime rate.)
4	Employee works through some or all of a meal period.	Employer has not made it possible for employee to take a timely, uninterrupted meal period.	Employer must pay employee both for the time the employee worked, PLUS the meal period penalty. (Note that if the time worked during the meal period puts the employee into daily or weekly overtime, the overtime hours must be compensated at the appropriate overtime rate.)