California’s Meal Break laws are some of the most difficult in the country for businesses to successfully implement. To add to the challenge, there are multiple sources of authority that all weigh in on what rules  must be followed, which include the California labor code, Wage Orders issued by the Department of Labor, as well as court decisions by California’s Court of Appeal and Supreme Court  — making it hard to keep track of what the rules are and how businesses are to comply.  Our guide below covers the most common rules and FAQs for businesses seeking straightforward guidance on the issue:

The Basic Rules

  • Employees must be given a meal break of at least 30 minutes, duty-free, if they work over 5 hours per day.
  • If the employee does not work more than 6 hours in the day, the employee can agree to waive the meal period.
  • Employees can agree with their employers to have “on-duty” meal breaks which counts as time worked and is paid.
  • If the employee works over 10 hours a day, they are entitled to a second meal break of at least 30-minutes, duty-free.
  • If the employee does not work more than 12 hours per day, they can agree to waive the 2nd meal break (as long as they did not waive the first meal break).
  • Employees must be allowed to leave the workplace for their meal break.
  • Employees cannot be allowed to work during any meal breaks.
  • Employee and employer can agree that the meal break must be “on duty” however, it must be a written agreement that contains specific provisions in it.

Please keep in mind there are special rules for certain industries, such as healthcare, group homes, motion picture industry, baking industry, and manufacturing.

Common Questions

California’s rules are more stringent than the federal rules (FLSA). Which rules do we need to follow? 

California’s rules. California law is more protective of employees than federal law, and if your business has employees in California, then your business will need to follow California’s rules.

What happens if our business does not comply? 

If your business is not providing the right amount of meal breaks to employees as often as required, then it is responsible for paying one (1) extra hour of regular pay to employees for each day a meal break violation occurred. In addition, this can trigger additional penalties for missed pay as well as penalties for inaccurate wage statements. A small infraction can result in a significant amount, which can then multiply exponentially depending on how many employees your business has had over the last 3 years.

What is the statute of limitations for a wage and hour claim in California?

Up to 3 years backwards from the date of the violation.

Does the employee have to be paid for a meal break if the meal break must be taken at the workplace (meaning, the employee cannot leave)?

Yes. If the employee is required to eat on premises, then the employer must pay the employee for the meal period, even if the employee is relieved of all work duties during the meal period.

Are employees required to clock in and clock out for meal periods?

There is no requirement that your business make employees “clock in or out” for meal periods, but practically speaking, doing so makes it dramatically easier to show that your business has actually been providing employees with meal periods. Otherwise, if your business faces a wage/hour lawsuit, it could be much harder to show that employees have actually been taking meal breaks, and it will be a case of your word versus theirs. The law does require your business’s employees to accurately document when they begin and end each work period.  Many employers prefer to use clock-in/clock-out or other forms of automatic time-cards to avoid relying on employees manually writing in their time (which can be less accurate).

My employees appear to be unable to consistently clock in / clock out. What should I do? 

Your business should have a handbook/policies that make clocking in / clocking out mandatory, subject to discipline if the employee refuses to follow the rules. For employees that occasionally or inadvertently fail to clock in / clock out, timesheet records should be reviewed on a weekly basis to require them to fill in any missed time entries. You should avoid filling in these time records for them, at all costs, because then you will permit the claim to be made that the time entries are inaccurate/forged because they are not always entered in by the employees themselves.

Our business’s employees refuse to take off-duty lunch periods and insist on “working through lunch.” What can our business to do to protect itself?

Your business’s obligation is to relieve the employee of all duty for the meal period, not actually ensure that the meal breaks are actually taken.  As long as your business “relinquishes control” over employees and gives them the opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them to do so, your business is satisfying its legal obligations.

Our business has middle-managers / supervisors that consistently interrupt employees while they are on breaks or meal breaks. How should we handle this?

Your business’s management should make it clear to all supervisors of non-exempt employees that the meal break or rest break time is to be respected and not interfered with. There are multiple examples of mid-level supervisors causing a violation of the company’s compliance with California wage and hour or other labor laws by either not knowing what the rules are or placing demands on non-exempt employees that are in violation of the rules.  Training can be provided to mid-level supervisors to ensure they understand what rights non-exempt employees have for rest breaks and meal breaks.

How much are the monetary penalties apply if there are violations of wage and hour rules? 

There are a number of penalties that come into play if California’s labor laws are not respected:

  • Labor Code (Section 558) Penalties.  $50 for the first violation of employees that are underpaid in a pay period, and $100 per subsequent employee / pay period.
  • Waiting Time Penalties. An employee that does not receive all wages to which they are owed can seek “waiting time penalties,” which are, a full day’s wages for each day that the wages remain unpaid, up to a 30-day maximum period.
  • Recordkeeping Requirement Penalties. If the employee’s time records are not correctly kept, the civil penalty is $500 for failing to keep records.
  • Attorneys’ Fees, Costs, Interest.  Wage/hour claimants are also entitled to attorneys’ fees, costs, and interest.

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Getting Legal Help

AXIS Legal Counsel’s provides legal advice to numerous businesses throughout California with a variety of legal matters, including employment, employee relationships, labor law, and wage/hour matters, as well as compliance with California’s numerous employment and labor laws. We have assisted clients develop employment policies, become compliant with California’s wage and hour laws, prepare employee handbooks, management agreements, employment agreements, independent contractor agreements, and numerous similar labor law and employment legal matters. We have also represented clients in litigation matters involving employee and independent contractor disputes, mediations, lawsuits, and arbitrations. For information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact or call (213) 403-0130 for a confidential consultation.


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