Employee Breaks Must be “Duty-Free”

March 16, 2018

Employment Law

Wage & Hour Violations

As an employee, you are entitled under the law to “duty-free” meal periods. However, the California Supreme Court in Brinker Restaurant Corp v. Superior Court (2012) clarified that if you are working at least 5 hours a day, your employer’s duties are only met 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 Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1041.)

First, absent a waiver, your employer must give its employees their first meal break “no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.” Id. at 1041. A meal break waiver is only permissible if that shift is no more than 6 hours. Id. at 1042. Alternatively, “when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to,” a paid “on-duty” 30-minute meal period is also permissible. Id. at 1035.

Second, “[e]mployees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” Id. at 1029.

However, you must actively take your meal breaks, so long as they are made available, because the “employer is not obligated to police meal breaks and ensure no work thereafter is performed.” However, your employer must give you a reasonable opportunity to take a duty-free break. If your employer’s policies violate these rules, you may have a claim. See id. at 1041.