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Meal
periods
In California,
an employer may not employ an employee for a work period of
more than five hours per day without providing the employee
with a meal period of not less than thirty minutes, except that
if the total work period per day of the employee is no more
than six hours, the meal period may be waived by mutual consent
of both the employer and employee. A second meal period of not
less than thirty minutes is required if an employee works more
than ten hours per day, except that if the total hours worked
is no more than 12 hours, the second meal period may be waived
by mutual consent of the employer and employee only if the first
meal period was not waived. Labor
Code Section 512. There is an exception for employees in
the motion picture industry, however, as they may work no longer
than six hours without a meal period of not less than 30 minutes,
nor more than one hour. And a subsequent meal period must be
called not later than six hours after the termination of the
preceding meal period. IWC
Order 12-2001, Section 11(A)
Unless the employee
is relieved of all duty during his or her thirty minute
meal period, the meal period shall be considered an "on duty"
meal period that is counted as hours
worked which must be compensated at the employee’s regular
rate of pay. An "on duty" meal period shall be permitted
only when the nature of the work prevents an employee
from being relieved of all duty and when by written agreement
between the employer and employee an on-the-job paid meal period
is agreed to. The written agreement must state that the employee
may, in writing, revoke the agreement at any time. IWC
Orders 1 –15, Section 11, Order
16, Section 10. The test of whether the nature of the work
prevents an employee from being relieved of all duty is an objective
one. An employer and employee may not agree to an on-duty meal
period unless, based on objective criteria, any employee would
be prevented from being relieved of all duty based on the necessary
job duties. Some examples of jobs that fit this category are
a sole worker in a coffee kiosk, a sole worker in an all-night
convenience store, and a security guard stationed alone at a
remote site.
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 employer fails to
provide an employee a meal period in accordance with an applicable
IWC
Order, the employer must pay one additional hour of pay
at the employee’s regular
rate of pay for each workday that the meal period is not
provided. IWC
Orders and Labor
Code Section 226.7 This additional hour is not counted
as hours
worked for purposes of overtime calculations.
In all places where employees
are required to eat on the premises, a suitable place for that
purpose must be designated. This requirement does not, however,
apply to employees covered by IWC
Order 16-2001, on-site occupations in the construction,
drilling, logging and mining industries.. For employees covered
by IWC
Order 16-2001, the employer must provide an adequate supply
of potable water, soap, or other suitable cleansing agent and
single use towels for hand washing.
Under all of the IWC
Orders except Orders 12, 14, 15, and 16-2001, if a meal
period occurs on a shift beginning or ending at or between the
hours of 10 p.m. and 6 a.m., facilities must be available for
securing hot food and drink or for heating food or drink, and
a suitable sheltered place must be provided in which to consume
such food or drink. Under IWC
Order 12-2001 for employees in the motion picture industry,
hot meals and hot drinks must be provided for employees who
are required to work after 12 o'clock midnight, except off-production
employees regularly scheduled to work after midnight.
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Q-1.
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What
are the basic requirements for meal periods under California
law? |
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Ans.
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Under California law (IWC
Orders and Labor
Code Section 512), employees must be provided with
no less than a thirty-minute meal period when the work
period is more than five hours (more than six hours
for employees in the motion picture industry covered
by IWC
Order 12-2001).
Unless the employee
is relieved of all duty during the entire thirty-minute
meal period and is free to leave the employer's premises,
the meal period shall be considered "on duty," counted
as hours
worked, and paid for at the employee's regular
rate of pay. An "on duty" meal period will be permitted
only when the nature of the work prevents the
employee from being relieved of all duty and when by
written agreement between the employer and employee
an on-the-job meal period is agreed to. The test of
whether the nature of the work prevents an employee
from being relieved of all duty is an objective one.
An employer and employee may not agree to an on-duty
meal period unless, based on objective criteria, any
employee would be prevented from being relieved of all
duty based on the necessary job duties. Some examples
of jobs that fit this category are a sole worker in
a coffee kiosk, a sole worker in an all-night convenience
store, and a security guard stationed alone at a remote
site.
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Q-2.
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My
employer is not allowing me to take a meal period. Is
there anything I can do about this situation? |
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Ans.
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Yes,
there is something you can do if you are covered by the
meal period requirements of the law. If your employer
fails to provide the required meal period, you are to
be paid one hour of pay at your regular rate of compensation
for each workday that the meal period is not provided.
If your employer fails to pay the additional one-hour's
pay, you may file
a wage claim with the Division of Labor Standards
Enforcement. |
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Q-3.
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Is
it permissible if I choose to work through my meal period
so that I can leave my job 30 minutes early? |
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Ans.
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No,
working through your meal period does not entitle you
to leave work early prior to your scheduled quitting time.
In order for an "on duty" meal period to be permitted
under the Industrial
Welfare Commission Wage Orders, the nature of the
work must actually prevent the employee from being relieved
of all duty, and there must be a written agreement that
an on-the-job paid meal period is agreed to. Additionally,
the written agreement must also state that the employee
may, in writing, revoke the agreement at any time. |
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Q-4.
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Can
my employer require that I stay on its premises during
my meal period? |
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Ans.
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Yes,
your employer can require that you remain on its premises
during your meal period, even if you are relieved of all
work duties. However if that occurs, you are being denied
your time for your own purposes and in effect remain under
the employer's control and thus, the meal period must
be paid. Minor exceptions to this general rule exist under
IWC
Order 5-2001 regarding healthcare workers. Pursuant
to the Industrial
Welfare Commission Wage Orders, if you are required
to eat on the premises, a suitable place for that purpose
must be designated. "Suitable" means a sheltered place
with facilities available for securing hot food and drink
or for heating food or drink, and for consuming such food
and drink. |
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Q-5.
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I
regularly work an eight-hour shift. What can I do if my
employer doesn’t provide me with a meal period? |
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Ans.
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You
can either file
a wage claim with the Division of Labor Standards
Enforcement (the Labor Commissioner's Office), or you
can file a lawsuit in court against your employer to recover
the premium of one additional hour of pay at your regular
rate of compensation for each workday that the meal period
is not provided. |
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Q-6.
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What
is the procedure that is followed after I file a wage
claim? |
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Ans.
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After your claim is completed
and filed with a local office of the Division of Labor
Standards Enforcement (DLSE), it will be assigned to
a Deputy Labor Commissioner who will determine, based
upon the circumstances of the claim and information
presented, how best to proceed. Initial action taken
regarding the claim can be referral to a conference
or hearing, or dismissal of the claim.
If the decision is to
hold a conference, the parties will be notified by mail
of the date, time and place of the conference. The purpose
of the conference is to determine the validity of the
claim, and to see if the claim can be resolved without
a hearing. If the claim is not resolved at the conference,
the next step usually is to refer the matter to a hearing
or dismiss it for lack of evidence.
At the hearing the parties
and witnesses testify under oath, and the proceeding
is recorded. After the hearing, an Order, Decision,
or Award (ODA) of the Labor Commissioner will be served
on the parties.
Either party may appeal
the ODA to a civil court of competent jurisdiction.
The court will set the matter for trial, with each party
having the opportunity to present evidence and witnesses.
The evidence and testimony presented at the Labor Commissioner’s
hearing will not be the basis for the court’s decision.
In the case of an appeal by the employer, DLSE may represent
an employee who is financially unable to afford counsel
in the court proceeding.
See the Policies
and Procedures of Wage Claim Processing pamphlet for
more detail on the wage claim procedure. |
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Q-7.
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What
can I do if I prevail at the hearing and the employer
doesn’t pay or appeal the Order, Decision, or Award? |
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Ans.
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When
the Order, Decision, or Award (ODA) is in the employee's
favor and there is no appeal, and the employer does not
pay the ODA, the Division of Labor Standards Enforcement
(DLSE) will have the court enter the ODA as a judgment
against the employer. This judgment has the same force
and effect as any other money judgment entered by the
court. Consequently, you may either try to collect the
judgment yourself or you can assign it to DLSE. |
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Q-8.
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What
can I do if my employer retaliates against me because
I asked him why we don’t get a meal period? |
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Ans.
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If
your employer discriminates or retaliates against you
in any manner whatsoever, for example, he discharges you
because you ask about not getting a meal period, object
to what you believe to be an illegal practice, or because
you file a claim or threaten to file a claim with the
Labor Commissioner, you can file
a discrimination/retaliation complaint with the Labor
Commissioner’s Office. In the alternative, you can file
a lawsuit in court against your employer. |
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