By Colleen M. Regan

Over the past decade, plaintiffs have filed hundreds of class actions alleging that California employers have failed to “provide” meal breaks.  The California Supreme court finally handed down some rules in 2012, in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004: 

  • An employer may not employ a person for more than 5 hours in a day without providing a meal break of at least 30 minutes, or more than 10 hours without providing a second 30 minute meal break. 
  • An employer must relieve the employee of all duty for a required meal break, but the employer need not ensure that the employee does no work:  “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.”  Brinker, 53 Cal. 4th at 1040. 
  • Absent a waiver by the employee, a first meal break must begin no later than the start of an employee’s sixth hour of work.
  • Absent a waiver by the employee, a second meal break must begin no later than the start of the 11th hour of work, but the second meal break may begin later than 5 hours after the end of the first meal period.

But, you may ask, does the government mandate over employee eating schedules know no bounds?  Are there no exceptions? 

The answer is “Yes!”  There are some exceptions, based on the length of the work day, the nature of the work, the industry, and whether a valid collective bargaining agreement is in place.  

1.         Work shift too short.  Employees who work no more than 5 hours in the day need not be provided with a meal period.  Period. 

2.         Waivers, by voluntary mutual consent. 

  • Short-ish shifts.  Employees who work no more than 6 hours in the day may voluntarily agree with the employer to waive the meal period that otherwise must be provided if the employee works more than 5 hours. 
  • Second meal periods.  If the employer consents, employees who work more than 10 hours but not more than 12 hours can voluntarily waive the second meal period, if the first one was taken. 
  • Neither kind of waiver must be in writing, although many employers use written agreements to evidence an employee’s voluntary consent. 

3.         On-duty meal periods.  Employees who are prevented by the nature of the work from being relieved of all duty during the meal period may agree, in writing, to an on-the-job, paid meal period.  This so-called “on-duty meal period” occurs rarely, as most jobs permit the employee to be relieved of duty for at least 30 minutes.   

4.         Health care workers.  Employees in the health care industry covered by Wage Order 4 or 5 who are entitled to two meal periods can voluntarily waive one of them.  This exception permits health care workers to waive meal periods even on shifts in excess of 12 hours.  The employees need not be subject to a CBA, but the waiver does have to be in writing. 

5.         Group home employees.  Group home employees, under certain circumstances, may be required to work on-duty meal periods without penalty, under Wage Order 5.  The employees do not have to be subject to a CBA.

6.         Motion picture employees.  Two exceptions apply to employees in the motion picture industry who are covered by Wage Order 12.  The first changes the time period after which the meal period must begin from 5 hours to 6 hours, and applies to non-unionized employees.  The second applies to employees covered by a CBA in the public broadcasting or motion picture industries (Wage Order 11 or 12), and allows the provisions of the CBA to govern so long as the CBA provides for a monetary penalty if the provisions of the CBA relating to meal periods are not followed. 

7.         Union employees in manufacturing.  Unionized employees in the manufacturing industry (Wage Order 1) may agree to a meal period that begins within 6 hours of work, rather than 5 hours. 

8.         Union employees in some heavy duty operations (maybe?).  Wage Order 16 provides for a complete exemption from the meal periods rules for employees in the on-site occupations of construction, drilling, logging, and mining who are covered by a qualifying CBA.  However, this exception has been held to be invalid.  See Bearden v. U.S. Borax, Inc., 138 Cal. App. 4th 429 (2006). 

9.         Union bakers.  Unionized employees in the baking industry who are subject to a qualifying CBA are excepted from the meal period rules. 

10.       Certain other union employees.  Unionized employees in (a) a construction occupation, (b) who are commercial drivers, (c) who work as security officers, or (d) who work for an electrical or gas company or local publicly-owned utility are exempt from the meal period rules of Labor Code Section 512 if the CBA meets certain criteria.  This exception was recently upheld in Araquistain v. Pacific Gas & Electric Co.. 176 Cal. Rptr. 3d 620 (2014). 

Workplace solution:  Most employers in California are subject to the meal period rules with which we have all become so familiar.  However, if your employees or your business fall into one of the above exceptions, then those rules may not apply, giving you a break from the break!

Edited by Chelsea Mesa