California law requires an off duty unpaid meal period of at least 30 minutes for every five hours worked. The failure to provide the meal period results in a penalty of one hour at the employee’s regular hourly rate of pay (Labor Code section 226.7 – mandated meal or rest periods).
California has two exceptions to this rule that are often confused: 1) meal period “waivers;” and 2) an “on duty meal period” agreement.
Meal Period Waiver
If an employee works no more than six (6) hours for the workday the employer and employee can agree to waive the 30 minute off duty meal period. The agreement can be oral, but Vision Law® recommends the agreement be written. If the employee works more than 6 hours the waiver is not available.
“On Duty Meal Period” Agreement
If an employee works more than six (6) hours, then the employee and employer can agree to an “on duty meal period” but only when the nature of the work prevents an employee from being relieved of all duty. The agreement must be in writing and the employee must be free to revoke at any time. In that case the meal period is “on the clock” (paid) but the employer need not pay the one hour penalty.
This on duty meal period is reserved only for extraordinary circumstances in Vision Law®’s view. Use with caution (and only after speaking with your employment lawyer). If employees work with others during normal business hours it would be difficult if not impossible to prove the “nature of the job duties” prevented the employee to be relieved of all duty.
Penalties if meal periods are not provided can add up fast. For an employee working 5 days per week who claims to have missed their meal period each day the penalty at $12/hour for 50 weeks per year for three years (the statute of limitations) is $9,000. Add penalties under California Labor Code section 203 (so called “waiting time penalties”) of up to 30 days wages as a penalty ($2,880) and that adds insult to injury.
Vision Law® advises small and medium businesses to prevent employee lawsuits. Vision Law®’s monthly flat rate programs are designed to avoid employee claims, and when a lawsuit is absolutely unavoidable, to place its clients in the best possible position to win as soon as possible with the least overall cost. Please see our monthly flat rate programs for small and medium business.