When Can Meal Breaks be Waived in California?
Meal breaks in California can be waived only under very limited circumstances.
- Shifts Between 5-6 Hours
If the total shift worked is less than six (6) hours total, then the employer and the employee can agree that no meal period will be taken by the employee.[note] Labor Code 512(a).[“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 30 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.”][/note]
- Shifts of More Than 6 Hours, but Less Than 10 Hours
Unless the employee qualifies for and agrees to take an “on duty” meal period (discussed below), the employee cannot waive their right to a meal break for shifts that are 6 hours or longer.
- Shifts More Than 10 Hours, but Less Than 12 Hours
If the total shift is less than twelve (12) hours total, then the employer and employee can agree that no second meal period will be taken so long as the first meal period was taken. .[note] Labor Code 512(a).[“An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, 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 the employee only if the first meal period was not waived.”][/note] Notice, this second meal break can only be waived if the employee agrees and if the employee’s first meal break was taken.
What Employees Qualify for “On-Duty” Meal Periods in California?
An “on duty” meal period is only permitted when:
- The nature of the work prevents an employee from being relieved of all duty during meal breaks; and
- When the employer and employee agree, in writing, that an “on-duty” meal period will be taken.
The written agreement between the employer and employee must state that the employee can revoke the agreement at any time.[note] IWC Orders 1 -15, Section 11(c); Order 16, Section 10 [“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 parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”][/note] If the employer and employee agree to an on-duty meal period, then the employee must be paid for the meal period.
Also, an employer and employee may not agree to an on-duty meal period unless, based on objective criteria, the employee would be prevented from being relieved of all duty based on the necessary job duties. According to the California Division of Labor Standards Enforcement, the following are some examples of jobs that might qualify for on-duty meal periods:
- A sole worker in a coffee kiosk
- A sole worker in an all-night convenience store
- A security guard stationed alone at a remote site.[note] https://www.dir.ca.gov/dlse/faq_mealperiods.htm.[/note]
If you have questions about waiver of meal breaks and agreement to on-duty meal periods, please contact Petronelli Law Group to speak with one of our experienced California employment law attorneys.
