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Civil Litigation Blog Post

California Protects Lunch Time

The Fair Labor and Standards Act (FLSA), the federal wage and hour law, does not obligate employers to give meal breaks. While states may fill the gap and enact their own meal break laws, fewer than half of the states have done so. California is one state that has flexed its legislative muscle to protect employees.

Do employers have to provide or enforce meal breaks?

In Brinkley v. Superior Court, the California Supreme Court held that employers have to make break time available and do not have to monitor employees to make sure that they do not work during their break time. The court concluded that there is a statutory obligation on employers to make sure that employees use their meal break period.

Take one or two?

When employees work for more than five hours, California law requires that employers provide an unpaid, off-duty meal break for a minimum of 30 minutes. Employees may designate the meal break unpaid if it:

  • Removes all duties from the employee
  • Designates an uninterrupted 30-minute break
  • Gives the employee full control over his or her actions
  • Takes no measures to inhibit the quantity or quality of the break 

The meal period may be waived if the work period is less than six hours and both the employer and employee agree. 

An additional meal break of at least 30 minutes must be provided to an employee who works more than 10 hours.  When the employee works less than 12 hours and exercised his or her right to the first meal break, the employee and employer may agree to waive the second meal break.

When is eating and working permitted?

On-duty meal breaks are allowed under California law if the employer and employee sign a written agreement and the employer pays the employee for the break period. In addition, the employee must maintain authority to revoke the on-duty break at will. For an on-duty meal break to be permitted, the work must be of the type that does not allow the employee to relinquish all of his or her responsibilities. 

Whenever an employer demands that an employee remains on-site, the employer must pay for break period

If you feel that your employer is curtailing your meal breaks or requiring you to eat while working, consult with a San Jose litigation attorney who will protect your rights at work.



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Creech Liebow & Kraus
333 West San Carlos Street, Suite 1600
San Jose, California, 95110-2726 USA