Non-exempt employees are entitled to an unpaid, uninterrupted, 30-minute meal period if they work longer than five hours in a day. Employees are also entitled to a second unpaid, uninterrupted, 30-minute meal period if they work longer than ten hours in a day. Uninterrupted means that the employee should not be interrupted with work or asked any questions regarding work during their meal period. Employees must be permitted to leave the work premises during their meal period. In order to be compliant, the meal period must start before the fifth hour of work. This means that if you start your shift at 9:00 a.m., you must start your meal period no later than 2:00 p.m. Using this example, if you are not able to start your lunch until 2:01 p.m., it would be considered a non-compliant meal period.
An employer is required to pay you one hour of pay as a premium in the event you are not able to take a compliant meal period. The non-compliant meal period could be the result of not being able to start your meal period until after the fifth hour of work, not being able to take a full 30-minute meal period, or having your meal period interrupted by work. If any of those situations occur, you are entitled to receive an additional hour of pay as a premium.
An employee can voluntarily waive their first meal break if they work more than five hours but less than six hours. Furthermore, an employee can voluntarily waive their second meal break if they work more than ten hours but less than twelve hours and did not waive their first meal break. Note that an employer cannot force you to waive your breaks in these situations, and it is illegal for an employer to retaliate against you for refusing to sign a waiver in these circumstances.
There is also another limited exception to the meal period rule discussed above which is an on-duty meal period. An on-duty meal period is where the employee continues to work during their meal period and gets paid for that time. On-duty meal periods are only allowed in very limited circumstances when the nature of the job prevents an employee from taking a compliant meal period. The employee must have signed a written consent form in order to take an on-duty meal period. If an employer is requiring you to take an on-duty meal period, you should consult an attorney to determine whether it is appropriate for your employer to be requiring you to do so.
Employees are also entitled to a ten-minute rest period for every four hours worked or major fraction thereof, unless the employee’s shift is less than four hours, in which case they are only entitled to a ten-minute rest break if they work at least 3.5 hours. As such, an employee who works an eight hour shift is entitled to two, ten-minute rest breaks. Rest breaks generally should be scheduled and taken as close to the middle of the shift as possible (i.e. for an eight hour shift, at two hours and six hours), however this is not a strict requirement like the first five hour requirement is for meal periods. The ten-minute rest period is a paid rest period, although the employee must be permitted to leave the premises during their rest period, provided they can make it back to the facility to resume work after their ten-minute rest period ends. Similar to a meal period, the rest period must be free of any work interruptions, otherwise it is considered non-complaint. This means that an employee cannot remain on call during a rest period (if their job generally requires them to carry around a walkie-talkie or company phone). If an employee is unable to take one of their ten-minute rest periods, they are entitled to the same one hour of premium pay at the employee’s regular rate.
If you believe that you have not received compliant meal or rest periods and have not received premium payment as a result of those non-compliant meal or rest periods, please contact our offices immediately to schedule a free consultation.