Here are some fun facts about lunch. The origin of the word lunch (luncheon) comes from the anglo-saxon word, “nuncheon,” meaning “noon drink.” In Spanish, the word for lunch is almuerzo. In German, lunch is mittagessen. Hobbits call it Elevenses. In California, however, lunch is called… mandatory.
Under California law, employers must provide employees with no less than a thirty-minute meal period for shifts exceeding more than five hours. A second meal period is required if an employee works more than ten hours per day. Labor Code § 512. An employer is not required to police meal periods. However, an employer must do more than simply make meal periods available. The employer must relieve the employees of all duty, relinquish control over their activities and must not impede or discourage employees from taking a meal period.
There are only two circumstances where a meal period can be waived. The first occurs when the total work period of the employee is no more than six hours and the meal period is waived by mutual consent of both the employer and employee. The second occurs between the tenth and twelfth hours of work. Recall that after ten hours, an employee is entitle to two meal periods. If the first meal period was not waived, the employee can waive the second meal period by mutual consent. Here is a useful summary:
Between 0 and 5 Hours – No meal period required
Between 5.1 and 6 Hours – One meal period that may be waived by mutual consent
Between 6.1 and 10 Hours – One mandatory meal period, which cannot be waived
Between 10.1 and 12 Hours – Two meal periods, only the second may be waived by mutual consent
Over 12 Hours – Two mandatory meal periods
“As a statutorily protected right, the decision to forego a meal period must be made personally by each worker on a daily basis. The decision to forego a meal period may not, therefore, be based on a specific requirement of the employer or on a policy or practice which could reasonably be perceived to be a condition of employment. Therefore, blanket ‘waivers’ of meal periods or ‘group’ agreements to forego or forestall meal periods until later in the work day, whether written or oral, will not be considered valid.” Valenzuela v. Giumarra Vineyards Corp., 614 F. Supp. 2d 1089, 1095 (E.D. Cal. 2009).
On-Duty Meal Periods
Under some circumstances, a meal period may be taken “on duty.” An on-duty meal period is permitted only when 1) the nature of the work prevents an employee from being relieved of all duty, 2) there is a written agreement between the employer and employee and 3) the agreement states that the employee may revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.
If an employee is forced to miss a meal period, he or she must be paid one hour of pay at the regular rate of compensation for each workday that the meal period is not provided. This is referred to as “meal period premium pay.” If the employer fails to pay the premium pay, the employee can file a wage claim with the Division of Labor Standards Enforcement or bring in action in state or federal court.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.