FLSA/Wages, Wage and Hour

Ask the Expert: California Meal Period Rules and ‘Premium Pay’

In the state of California, if an hourly associate works 6.5 hours without a meal period, what does the company owe them? I have an associate claiming she should be receiving an hour of extra pay for any shift where she did not receive a meal period before her 5th hour. She is also asking about premium pay. Can you elaborate on what that is and how it is administered? meal break

Answer from the experts at HR.BLR.com:

The information you are looking for is covered in depth on the California Rest Periods analysis page on HR.BLR.com. For your convenience, we’ve copied the relevant sections below.

Employees must be allowed a half-hour meal break during any work period of more than 5 hours per day. Employees may voluntarily give up their meal breaks if the workday does not exceed 6 hours (CA Lab. Code Sec. 512). Employees who work more than 10 hours per day must be provided a second meal period of not less than 30 minutes, except that if the total hours worked is less than 12 hours, the second meal period may be waived, but only if the first meal period was not waived.

Under ordinary circumstances, the employee must be totally relieved of work duties during the meal period. However, if the nature of the work prevents the employee from being relieved during meals, the employer and employee may agree in writing to “on-duty” meal breaks.

The employer must pay wages for any meal period in which the employee is not totally relieved of duty.

Work periods of more than 5 but no more than 6 hours per day: An employer may not employ an employee for a work period of more than 5 hours per day without providing the employee with a meal period of at least 30 minutes. Employers are not required to force their employees to use their meal period. Employers are required only to provide the break. If the total work period per day is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee.

Work periods of more than 6 but no more than 10 hours per day: A 30-minute meal period is required beginning before the work period exceeds 6 hours. (Example: Even if the meal period is provided in the first hour of work, and an employee works an additional 7 hours after the meal period for a total of 8 hours for the day, a second meal period need not be provided.)

Work periods of more than 10 hours per day but no more than 12 hours per day:  An employer may not employ an employee for more than 10 hours per day without providing a second meal period of no less than 30 minutes. 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. Employers may not require employees to work during any of the meal or rest periods.

An employer that fails to provide an employee with a meal period or rest period may be required to pay the employee an additional hour’s wages at the employee’s regular rate of compensation for each workday that a meal or rest period was not provided.

The California Supreme Court recently ruled that the additional hour of pay is considered wages, not a penalty, and is subject to a 3-year statute of limitations (rather than the 1-year statute of limitations for penalties) (CA Lab. Code Sec. 226.7). This additional hour of pay is what your employee is referring to when she talks about “premium pay.”

Note again, that employers are not required to force their employees to use their meal and rest periods. Employers are required only to provide the breaks. The analysis page contains more information on what, exactly, it means to “provide” a break.

This page from the California DLSE may also be of interest: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm