The last Workplace Law article discussed meal period requirements explained in the California Supreme Court’s decision in Brinker v. Superior Court. In this article we review the timing and waiver of meal periods, overtime considerations, and


  • The general rules on timing and waiver of meal periods that apply to most employers are found in Labor Code section 512(a) and the Industrial Welfare Commission Wage orders. These rules were explained in the Brinker case as follows:
  • An employee who works less than 5 hours is not entitled to a meal period.
  • Employees who work between 5 and 6 hours may waive the meal period.
  • Employees who work more than 6 hours must be provided a minimum 30 minute meal period before the end of the fifth hour of work.
  • If an employee works more than 10 hours, a second 30 minute meal period must be provided before the end of the tenth hour of work. If the total shift is 12 hours or less, the employee may waive the second meal period only if the first meal period was not waived.
  • Employers are not required to provide a 30 minute meal period for every 5 consecutive hours worked.
  • On-duty meal periods are permitted only in very limited circumstances.
  • If an employer fails to provide an employee a meal period as required, the employer must pay the employee a penalty equal to 1 hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.

Once an employer has provided a minimum 30 minute duty free meal period, employees may choose to skip or shorten the meal period if they want to. Although the employer will not have to pay the 1 hour penalty if an employee voluntarily chooses to work during the meal period, this may result in overtime liability for the employer. For example, if an employee is scheduled to work 8:30 a.m. to 5:00 p.m. with a 30 minute lunch, but the employee chooses to work through lunch and works until 5 p.m., the employee will be owed 8 hours of straight time pay, and 30 minutes of overtime. If the employee leaves work at 4:30 p.m., no overtime will be owed. This may cause a problem for an employer who expects the employee to work until 5 p.m.

To avoid problems, employers will need to clearly communicate with employees and adopt policies informing employees whether or not they will be permitted to:

  • work during a meal period;
  • work overtime; or
  • adjust the end time of their shift and leave work early.

Employers who allow employees to leave early, work overtime, or skip/shorten meal periods must also decide if advance approval from a supervisor will be required. In all cases, the employer must keep accurate records of the start and end time of the meal period.

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