In California non-exempt employees must be “provided” a 30-minute meal period for ever five hours worked. Employees who work ten hours or more in a workday must be provided with two 30-minute meal periods. However, there are exceptions: (1) if the employee works six hours or less and consents in writing to waive the meal period; or (2) if the employee works less than twelve hours and the employee actually takes the first meal break, then the employee can waive the second meal period. Employers are not required to pay employees for any meal period.
California courts have not agreed on the exact meaning of the word “provide.” One court has held that an employer has an “affirmative obligation to ensure that workers are actually relieved of all duty” during their meal period. Another group of courts held that employers need not require that employees take meal breaks as long as they are allowed to take them. (The issue is now before the California Supreme Court for clarification.)
Nonetheless, if an employer fails to relieve a non-exempt employee of all duties or does not permit the employee to leave the premises during a meal period, then it is considered an “on duty” meal period. For each missed meal period, the employer must pay the employee one additional hour of pay at the employee’s regular pay rate. This meal period pay is capped at one hour of pay for each workday (even if the employee was not given the second meal period). Employees generally have a private right of action to recover meal period pay, and the statute of limitations for recovering pay for a missed meal periods is three years.