San Francisco Employment Law Firm Blog
There are numerous exemptions and exceptions that relieve California employers from the some legal duties with regards to providing their employee with rest and meal breaks. These exception usually apply to employees of such professions and in such environment where complying with the general rules would be unduly burdensome impracticable for the employer.
In the absence of an applicable exception, the following general rules apply to meal and rest breaks in California. An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of at least 30 minutes. However, if the total work day of the employee is sex hours or less, the meal period may be waived by mutual consent of both the employer and employee. It is very prudent for an employer to obtain such consent in writing in order to avoid subsequent claims for unpaid meal breaks, as the employer would normally have a burden of proving that he/she complied with the law.
Under California Labor Code 512, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of at least 30 minutes. However, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived. Further, under labor code section 226.7(a), no employer shall require any employee to work during any meal or rest period.
The right to meal periods and penalties under California’s Labor Code applies, and has consistently applied, to workers who are members of a union and who are covered by collective bargaining agreements (CBAs). Moreover, the right to meal periods and penalties for violation of those rights is non-negotiable and cannot be waived.
It’s important to note that the employers’ obligation to provide meal periods does not suggest any obligation to ensure that employees take advantage of what is made available to them. Brown v. Federal Express Corp. (2008); Brinker Restaurant Corp. v. Superior Court (2008). The employer must only make the meal period time available and not force employees to work through their meal/break periods.