Meal and Rest Periods in California: A Sample Policy

As you're probably well aware, California has very specific meal and rest period regulations. Here's a quick summary of the meal period requirements. An employer must:

• Relieve the employee of all duty (but need not ensure that the employee does no work—there is no obligation to police meal breaks).
• Relinquish control over the employee's duties.
• Permit a reasonable opportunity for an uninterrupted 30-minute break.
• Provide a first meal period after no more than 5 hours of work and a second meal period after no more than 10 hours of work.
• Not undermine their own meal period policy by pressuring employees to perform duties in ways that omit breaks.
• Only allow an employee to waive their right to a meal period by mutual consent, and only if the employee does not work more than 6 hours.

The rest period requirements are similar:

• Employers must authorize and permit a rest period for every 4 hours worked or major fraction thereof.
• Any work in excess of 2 hours within a 4-hour period entitles the employee to 10 minutes rest.
• An employee working a shift over 2 hours but less than 3 ½ hours need not be permitted a rest period.
• The rest period must be at least a net of 10 minutes.
• It is to be taken in the middle of each work period, insofar as practicable.
• If the employer fails to provide a rest period, there will be a penalty of one hour of pay at the employee's regular rate.

Most employers understand these rules, and employees demand them. Employers are well-served by having a policy that outlines these requirements and also gives employees their own responsibilities in ensuring that the rules are met.

Meal and Rest Periods in California: A Sample Policy

Here is a sample meal and rest period policy:

[Company] provides non-exempt employees with 10-minute paid rest breaks as required by California law. Non-exempt employees receive one rest break for each four hour work period or a "major fraction" of a work period (i.e. greater than two hours); however, any non-exempt employee who works less than 3½ hours in a day is not eligible to take a rest break. The number of breaks received is as follows:

• Non-exempt employees who work between 3½ and 6 hours are entitled to one rest break.
• Non-exempt employees who work more than 6 and up to 10 hours are entitled to two rest breaks.
• Non-exempt employees who work more than 10 and up to 12 hours are entitled to three rest breaks.

A rest break is paid time when you are relieved of all work duties and responsibilities, although you must remain on the facility premises. Rest breaks may not be combined, added to a meal period, or taken at the very beginning or very end of the day, unless you receive advance permission from your supervisor. Insofar as practicable, rest breaks should be in the middle of each work period. Employees must self-police their rest breaks and ensure that they take their breaks every day. If any employee is unable to take his/her rest break time, the employee must notify his/her supervisor at the time the employee is unable to take the rest break. Failure to follow this notification requirement may lead to discipline, at the Company's discretion.

[Company] also requires its employees in non-exempt positions to take a mandatory unpaid, uninterrupted meal break in accordance with California law (30-60 minutes per their arrangement with their supervisor)*. A meal break is an unpaid period when employees are relieved of all work duties and responsibilities, generally for the purpose of consuming a meal. All employees may leave the premises during meal breaks, if they choose to do so. Employees must clock out when taking a meal break and clock back in when they resume working. During the meal period break, employees may not perform any work-related activities.

If non-exempt employees work more than five hours (5:01), they will be scheduled for one unpaid meal break, to begin after working no more than 5 hours (5:00). However, if the time worked is between five hours and six hours, the meal period can be waived by a written mutual consent between the employee and his/her supervisor. Non-exempt employees working more than 10 hours (10:01) will be scheduled for a second meal break to begin after working no more than 10 hours (10:00) of work. Employees are expected to be punctual and adhere to their assigned work schedule.

If an employee is unable to take his/her meal break or take it in a timely manner, the employee must notify his/her supervisor before or at the time the employee is unable to take the meal break. Failure to follow this notification requirement may lead to discipline, at [Company's] discretion.

*Change this section to reflect your own policy in terms of meal period length.

Meal and Rest Periods in California: More Policy Ideas

The above sample policy is a good start, and employers can add to it as required. In fact, it may be beneficial to add policy language that explains that if the employee does not take the meal break, then it will be considered a voluntary waiver. Marc Jacuzzi outlined how this might look in a recent CER webinar:

"If an employee does not take a full meal break, or fails to take it in a timely manner, and fails to notify his/her supervisor, it will be presumed that the employee voluntarily waived the meal break."

"That type of language there is nice as another means of protection." Jacuzzi explained. This could also be added for the rest break since this above example is for the meal break.

This sample policy can of course have updates to be consistent with your other policies, but it encompasses the California meal and rest break laws as it now stands. It serves the purpose of reinforcing the law and ensuring the employees know their rights. It also outlines their responsibility to take the breaks in most instances.

The above information is excerpted from the webinar "Meal & Rest Breaks In California: Post-Brinker Exposure to Significant Monetary Liability Still High—What You Need to Know to Comply with State Law." To register for a future webinar, visit CER webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.