In what many would consider to be an employer-friendly decision, more than a decade ago in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court clarified many of the general requirements for meal and rest periods under California law.

But in 2021, the California Supreme Court issued employee-friendly decisions in Donohue v. AMN Services, LLC and Ferra v. Loews Hollywood Hotel, LLC.  Since these latter decisions have seemingly spurred an increased number of class and PAGA actions alleging meal and rest period violations, it makes sense to revisit the requirements. 

California wage-hour law is governed in large part by 18 different wage orders that apply to different industries and occupations.  “The number of wage orders, and their internal variations, reflects the reality that differing aspects of work in differing industries may call for different kinds of regulation,” as the California Supreme Court explained in Mendiola v. CPS Security Solutions, Inc.  Indeed, as the Court explained in Brinker, “[w]hat will suffice [for meal and rest breaks] may vary from industry to industry.”

With that in mind, this tip is not a one-size-fits-all guide but instead discusses California’s meal and rest period requirements generally.

The Nature of Meal and Rest Periods

An employer’s duty is to “provide” meal periods; there is no duty to ensure they are taken.  “The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so,” as the Brinker Court explained.  The Court further explained that “the employer is not obligated to police meal breaks and ensure no work thereafter is performed.”

Off-duty rest periods must also be “provided.”  

Employers must relieve their hourly employees of all duties and relinquish all control over how they spend their meal and periods.  Generally speaking, employees should not be interrupted during their breaks, nor should they be required or expected to keep communication devices with them or to monitor such devices if they voluntarily keep such devices on them. 

While meal periods should be at least 30 minutes of uninterrupted time, rest periods should be at least 10 minutes of uninterrupted time.  If an employer interrupts an employee’s meal or rest period, the employee should be provided another break so that the employee is then afforded a full, uninterrupted break.

Meal periods should be off the clock and unpaid; however, rest periods must be paid and on the clock.  Additionally, employees must be permitted to leave the employer’s premises during meal periods.  Whether they must also be allowed to leave the premises during rest periods remains a matter of dispute. 

The Number and Timing of Meal and Rest Periods

An employer’s obligations to provide meal and rest periods are triggered when an employee works a certain number of hours.  Below is a chart explaining the number of meal and rest periods that should be provided depending on the number of hours worked in a single workday.

* If an employee works more than five hours in one workday, the employee may voluntarily waive his or her meal period if the time worked will not exceed 6 hours in one workday. 

** If an employee works more than 10 but not more than 12 hours in one workday, the employee may voluntarily waive his or her second meal period, so long as the first meal period was not waived. 

It is a best practice to have these meal period waivers (i) in writing, (ii) signed, and (iii) placed in the employee’s personnel file.

A first meal period should be provided within the first 5 hours of work, and a second meal period should be provided within the first 10 hours of work.  Rest periods should be provided in the middle of work periods.  An example of appropriate timing and sequence in an 8-hour shift is as follows:

• 8:30 a.m. – the employee clocks in for work
• 10:30 a.m. – the employee takes a paid, on-the-clock rest period
• 10:40 a.m. – the employee ends the rest period and resumes work
• 12:30 p.m. – the employee clocks out and takes an unpaid, off-the-clock meal period
• 1:00 p.m. – the employee clocks back in from the meal period and resumes work
• 3:00 p.m. – the employee takes a second paid, on-the-clock rest period
• 3:10 p.m. – the employee ends the second rest period and resumes work
• 5:00 p.m. – the employee clocks out and leaves work

The Donohue Impact

Since the California Supreme Court’s decision in Donohue, time records reflecting meal period compliance have become much more critical in defending these claims.  One of the significant holdings in Donohue was the Court’s ruling that “time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage,” meaning that the Court essentially put the burden on employers to make an initial showing that a meal period was lawfully provided when an employee’s time record reflects otherwise.  In terms of providing evidence to meet that initial showing in a lawsuit, that can be difficult where memories fade or supervisors take other employment and are no longer controllable witnesses.  As such, employers can protect themselves by implementing certain measures. 

Such measures would include not only having lawful meal and rest period policies and practices in place, but also having signed attestations from employees each pay period (or each week or each day) wherein employees confirm that they received, among other things, an opportunity to take at least a 30-minute meal period within the first five hours of work.  After Donohue, employers have increasingly adopted these attestations as an effective defense to meal period claims.

The Ferra Impact, or the Penalty for Failing to Meet Meal or Rest Period Requirements

If an employer does not provide an employee with a meal or rest period in accordance with the above requirements, a penalty is owed.  These penalties are usually referred to as meal or rest period premiums.  They are calculated as one hour of pay at the employee’s regular rate of pay, which was the critical issue in Ferra.  The “regular rate of pay” is a term of art generally used for overtime purposes, rather than the employee’s base rate of pay.  The “regular rate of pay” generally takes into account all nondiscretionary forms of wages, including hourly pay, shift differentials, piece-rate, commissions and incentive/production bonuses, among other forms.  For a more detailed discussion on what to include in the regular rate of pay – and what may be excluded – please see our prior posts here and here.

Note that an employee may recover only one meal period premium and one rest period premium per day.  These meal and rest period premiums – when paid – should also appear as their own line items on employee’s wage statement.

Putting It All Together

Having lawful written policies that accurately set forth employees’ entitlements to meal and rest periods, in addition to implementing practices that do not impede or discourage employees from taking those meal or rest periods, is an effective way of avoiding litigation in the first place.  But when an employer finds itself facing a lawsuit alleging meal and rest period violations – one that would surely be brought as a proposed class action on behalf of dozens, hundreds or even thousands of employees – having these lawful policies and practices already in place increases the ability to successfully defending that lawsuit.