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legal news & tips for employees published by Law Office of Eugene Lee

What Break Periods Am I Entitled To?

rest breakUnder California law (which is much more generous to employees than federal law), if you are a non-exempt worker, you are entitled to meal and rest breaks: a 30-minute meal break if you work more than 5 hours in a workday, and 10 minutes breaks for every 4 hours you work. There are other requirements though. If your boss doesn’t comply with break requirements, they are required to pay you one extra hour of regular pay for each day on which a break violation occurred.

For the nitty gritties, see below:

Rest Breaks

  1. If you work at least 3.5 hours in a day, you are entitled to a rest break.
  2. Your boss must give you a rest break of at least 10 consecutive minutes for each 4 hours worked.
  3. Rest breaks must to the extent possible be in the middle of each work period.
  4. Rest breaks must be paid.
  5. Your boss may require you to remain on work premises during your rest break.
  6. You cannot be required to work during any required rest break. [Cal. Lab. C. 226.7]. BUT, you are free to skip your rest break provided your boss isn’t encouraging or forcing you to.

Meal Breaks

  1. If you work over 5 hours in a day, you are entitled to a meal break of at least 30 minutes. BUT, you can agree with your boss to waive this meal period provided you do not work more than 6 hours in the workday. You can also agree with your boss to an on-duty meal break which counts as time worked and is paid.
  2. If you work over 10 hours in a day, you are entitled to a second meal break of at least 30 minutes. You can agree with your boss to waive the second meal break if you do not work more than 12 hours and you did not waive your first meal break.
  3. Your boss has an affirmative obligation to ensure you are free to take your meal break off work premises.
  4. You cannot be required to work during any required rest break. [Cal. Lab. C. 226.7]. Your boss has an affirmative obligation to ensure you are actually relieved of all duty and are not performing any work during meal breaks.

Keep in mind, there are many exceptions to the above for certain industries, such as the healthcare, group home, motion picture, manufacturing, and baking industries.

If your employer is violating your rights to meal and rest breaks, you should contact a lawyer right away. Your claims could be subject to strict filing deadlines. For meal and rest break violations, the filing deadline is usually considered to be 3 years thanks to a recent California Supreme Court decision. [Murphy v Kenneth Cole Productions, 40 Cal.4th 1094 (2007)], but in certain cases, a 1 year filing deadline could apply.

Keep on taking those breaks!

Photo courtesy of cjmellows

  • L.G.

    Ian’s a preschool teacher I work 6 hours a day. I have 1 hour and 15 min break. 15 min paid and 1 hour unpaid . Is it legal?

  • Shelly Hazeleur

    I worked at a billiards parlor and had the bosses from hell. The bosses, who are the owners and are ma married couple, were the biggest bullies and did many things that I feel were both unfair, threatening, embarrassing and probably illegal. I will start with breaks. I usually worked 7.25 hour shifts. I never got a lunch break or a 10 minute break ever. On nights that it was extremely busy and I couldn’t even break away from the register until we closed, Even though I worked hard and as fast as I could, there was no possible way of getting my closing duties done by 1:15 am. We close at 1:00 am and there are many duties I had to complete before closing. Even though our sales were double that of an average weekend night,(which is usually pretty busy on the average, you would think that they would be happy that you made so much money. Instead I got a call from my boss where she yelled at me for clocking out later that 1:15 and she said it was unacceptable. I tried to explain that it was so busy i couldn’t do anything until we closed because I was stuck at the register. She said that if I couldn’t get it done on time, that she would find somebody that could. From then on out I always clocked out at 1:15, although many nights I worked until 1:45 and even later. Nobody could have gotten it done any faster. I would come to work and customers would tell me how she was cussing me out to other employees and in front of our customers for stupid things. exsample… I am overweight and when I get working hard I sweat and my inner thighs rub and get a terrible rash. So I took some corn starch to work because it helps me be able to walk if I mput it on the rash. I stashed it away and labled it Shelly’s corn starch. She found it and very loudly said, “god damn that shelly! She pisses me off!” She went on to tell a fellow worker and anyone that had ears things about me that pisses her off. She through my cornstarch away without even talking to me about it or asking me why i had it there. I found out what had happened to it from a customer the next time I was needing it and couldn’t find it. Many of my paychecks would be off. Never by much but never in my favor either. I left notes about one in particular, that they shorted me $17.00 on my credit card tips. No response. I then called and talked to Ron and he said just leave my tip income report and paycheck stub and they would take a look. I did. The copies were taken, (I did make another copy), and they never paid me. In fact I was always so afraid that I was going to be fired that I never reported other mistakes on other checks and the day I brought up the $17.00 they still owed me, Ron said he didn’t know what i was talking about, and I got fired. Not because i asked for my money, but that certainly did piss him off. I had been asking for more hours and I finally got them for 1 month. We had a new guy that had just started working there that would count the drawer the following day, and he made a mistake and was matching the wrong set of numbers on the credit card machine. My drawer was exactly right, both in cash and in credit card slips and the boss didn’t understand that he was looking at the wrong set of numbers and that made my register appear as if it were $30.00 off. I was off for a couple days because of an abscessed tooth and when I came back I learned that our back up money bag was supposedly $50.00 short. I know nothing about it. He said it was my shift but I was not even there. He talked to another employee about the missing money and said it was $75.00 short. I talked to him and told him that he needed to look at the paperwork that said my drawer was $30.00 short and he would realize it wasn’t. he would realize that the new guy made a mistake. I also told him that I had nothing to do with the missing money. He said, Let’s just forget about it and start over with a clean slate. I did not like that idea because I wanted to clear my name. However, I said ok because you can only argue with your boss for so long. The next time I came to work there was a new schedule where my hours were cut in half for the whole month. he told me it was because i was a risk and referred to the mistake that I didn’t make and the money I didn’t take. I was financially punished for things I was not guilty of. Then we got a whole new computerized register system and i was not given even 2 minutes of training on, even though before we got it they told me we would have to be trained on it in the day when it is slow. The first mistake I made, and I knew I had made a mistake but could not correct it because you have to have a secret code to void a mistake that has been entered, the first mistake I made, my drawer was short $18.00 because a ticket got rang in twice. It was an over ring, not a money shortage, and I got fired. I could keep going, but I won’t. Can I sue them over any of these issues and if so, how do I go about it?

  • lucachic

    I am so confused about the whole break situation. ok so If I work a 8am-5pm job, I have to work 4 hours in order to get a break?? with the company I am with she wants us to go to lunch at 12pm, so from 8-12 that’s already lunch so is that counted as a break? because then when we get back from lunch we work from 1pm-5pm that’s 4 hours gone and we go home? so where’s the break in all this whole thing? because I always thought if you have worked 2 hours since you have been at work you are entitled to a break, then you have your lunch, you come back work for 2 more hours and then get a break and then go home? isn’t that the way it’s suppose to be? because I don’t understand the whole you have to work a full 4 hours before you can get a break, that doesn’t make any damn sense!!!…

    • Jess

      Your suppose to take a break in between those 4 hours. So you would take your first break at 10 then lunch at 12 and your last break at 3.

      • Eugene Lee

        To add to what Jess said, you are supposed to get your first rest break as close to the middle of the first 4 hours as possible (10 am is perfect), your second rest break as close to the middle of the second 4 hours as possible (3 pm is perfect). Employers aren’t allowed to combine all rest and meal breaks into one.

  • Bugged

    My manager told me that I can only take a break if I have coverage in my 4 hour shift and sometimes I don’t have coverage until the last hour of my shift to take a break. Is this legal?

    • Eugene Lee

      Probably not. There are exceptions though.

      • antiphon98

        What are the exceptions? And what should an employee do if there is no one else there to cover the break? I want my break but I also don’t want to leave the store unattended during my 10 min break if I’m the only one there

  • Hernan Carrillo

    working 9 hours with 1 hour lunch, and not breaks in between
    since I taking 1 hour lunch breaks are included in this hour lunch
    It’s legal

    • Eugene Lee

      It’s not legal. Rest and meal breaks can’t be combined. You are entitled to your first 10-minute rest break after 3.5 hours, and your second 10-minute rest break after 6 hours.

  • confuseddeziner

    I am a graphic designer and have been working for the same company for 8 1/2 years. I have never been given two 10 minute breaks. They do give me a 50 minute lunch break, is that covering those 10 minute breaks? I am confused????

    • Eugene Lee

      No. Employers can’t combine rest and meal breaks into a single break. That is illegal.

  • Hector Sosa

    I have been working for 2 years on a double shift. Can my employer just give my hours to a new employee?

    • Eugene Lee

      Generally, yes. Employers get to dictate, and change at any time, your pay, hours, job duties, etc. California is an at-will state. But check your union collective bargaining agreement (if you are in a union), your employer’s policies and handbooks, and your employment contract (if you have one) and see if there is a provision that says differently. If there is, you might have a breach of contract claim.

  • Cody

    Do they have to pay you the Civil Penalties as stated in the Industrial Welfare Commission Order NO. 4-2001 Regulating Wages, Hours And Working Conditions?

    • Eugene Lee

      If your employer is violating labor laws on overtime, rest breaks, meal breaks, last paycheck, etc., then you are entitled to collect a slew of penalties. Even the smallest claim will usually result in thousands of dollars in penalties.

  • LorenM

    Can my employer force me to go on my break half an our into the start of my shift and take my lunch two hours into the start of my shift if I work an 8 hour day?

    • Frustrated

      I’m also anticipating this reply.I rarely take a break and I’m told to take my lunch 3hrs after I clocked while another employee takes theirs 6 hours after.Is this legal?

      • Eugene Lee

        You have to be allowed to take a meal break before the start of the sixth hour, so that part sounds illegal. But forcing you to take a meal break after 3 hours sounds ok to me. If the reason you are “rarely” taking a break is because your employer is preventing/ refusing/ punishing/ deterring you, then that is a violation of the law. Some lawyers might disagree with me on that, but the fact is, that is how most labor board commissioners view the law, and that is what matters if you decide to make a labor board complaint.

    • Eugene Lee

      Well, you are supposed to be allowed your first meal break before the start of the sixth hour, so if they are “forcing” you to do that, that is probably ok. But you work MORE than 3.5 hours, you are supposed to get a 10-minute rest break. And if you work MORE than 6 hours, you are supposed to get a second 10-minute rest break. Those rest breaks have to be as close to the middle of each 4 hours work period. So if none of that is happening, your employer is probably breaking the law and you may be entitled to collect thousands of dollars of break premiums.

  • Steve

    My boss makes me take a single one hour break every day. I work 8 hours a day. Is this ok? Please help.

    • Eugene Lee

      The employer is not legally permitted to combine all rest and meal breaks into a single break. For instance, you are supposed to receive rest breaks as close to the middle of each 4 hour period as possible. And you are supposed to receive a meal break before the start of the sixth hour. etc. It sounds like your employer is breaking the law. If so, you are entitled to make a claim and collect break premiums that could be thousands of dollars depending on your situation.

  • David Baker

    By the labor board, if i go in for work as scheduled(not on-call) and they say my shift is cancelled, are they required to pay me a minimum amount for not telling me in advance? If not, doesn’t the labor board require employers to pay you 4 hours minimum even if you dont work for 4 hours?

    • Eugene Lee

      I think you are talking about something called “reporting time pay”. This is what the DLSE has to say about it:

      “Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, the employee must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.

      For example, if an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.”

  • Delores

    I do not get breaks at my job is this legal? what can i do i work 8-9 hours a day and we have to stand and work when eating lunch

    • Kolby

      Same here! I want my break!

      • Eugene Lee

        If you are non-exempt hourly workers, then you are entitled by law to get rest and meal breaks. In a few exceptional cases, on-duty meal breaks are allowed and meal breaks can even be waived. But rest breaks can not be waived. The law requires rest breaks in order to protect the health and safety of workers who are working long hours. If you are being denied your breaks, then your employer is breaking the law and you can make a claim for possibly thousands of dollars in break premiums.

        • disgusted

          What if you are an exempt teacher in a private school and your employer makes you work from 7:30-12:15 and then 12:30 until 4:00 with no lunch and a 4 minute break? BTW, I’m also salary.

          • Eugene Lee

            If you are a non-exempt employee (and being salaried doesn’t necessarily mean you are exempt, you may have been misclassified by your employer), then your employer is violating both meal and rest break laws. It also looks like your employer owes you for 30 minutes of overtime per day. Your claim (if you have been misclassified as exempt) could be tens of thousands of dollars, depending on how long you have worked there.

  • Michael Wynn

    What about unarmed security workers who work 20 hour shifts on the weekend? We give them 2 “on-duty” paid meal breaks per day and authorize five 10-minute rest periods which can be taken at workers discretion. These security personnel do not generally deal with the public or confront criminals,

  • Lisa

    As an employer in the service industry, my employees are working in homes (cleaning). I have no problem with the law, but our clients do not want their technician taking breaks and/or eating while at their homes. Is the cleaning industry an exception? Do you have any advise on this particular issue?

  • grace

    If I’m working 1045 to 615 and taking either a 10 and a 30 or usually a 40 minute break is that legal? Or am I entitled to one more 10 min break?

    • Eugene Lee

      Yes. After 3.5 hours, you are entitled to your first 10-minute rest break. After 6 hours, you are entitled to your second 10-minute rest break. Also, rest breaks and meal breaks cannot be combined. Sounds like you are owed for the missed breaks at the rate of 1 hour’s pay for each day on which that happened. You may also be entitled to other penalties which could be thousands of dollars.

  • Estela

    Is an employer allowed to dictate what can and cannot be done on my 10 minute break? For example, can they say tell an employee that on their 10 minute break they are not allowed to eat but simply have a drink of water and go to the restroom?

  • Estela

    Is an employer allowed to dictate what can and cannot be done on an employees 10 minute break? For example, can they tell an employee that on their 10 minute break they are not allowed to eat but simply have a drink of water and go to the restroom?

  • lesla

    I work 4 days a week 2 days out of the week i get a 2 hr lunch i work from 9 -6 with lunch being at 1230 to 230pm and the other 2 a 30min break And i work from 12-8pm. How many breaks should i get ? Ami getting all the breaks im supposed to get? Im pretty sure i dont get breaks paid because we have to clock out for lunch and breaks. Take in mind its a small business. And my pay is 9.50 an hr

    • Eugene Lee

      I don’t know your whole situation, but it sounds like you are getting sufficient meal breaks. The question I have is whether you are getting your 10-minute rest breaks. I would need to know more information.

  • La Peligrossa

    I live in Ca. and I work 7 hours on Saturdays and my boss pays me 6 1/2 hours, is that right??

    • Eugene Lee

      That might be ok if you are getting a 30-minute meal break. In California, the employer does not need to give PAID meal breaks. Otherwise, it sounds like you are owed for 30 minutes per Saturday, plus penalties.

  • NorCalMomma

    I work an 8 hour day, and would like to waive my 1/2 hour lunch in order to work my childcare situation. Can my employer force me to take a lunch break if I agree to waive it?

  • Azrael

    I work in a preschool where I am told that my breaks are combined with my lunch. Instead of a 30 minute lunch I take a one hour lunch if lucky. Sometimes the children are picked up late and I don’t get to take my one hour lunch. Are teachers in preschools exempt from the meal and rest break law?

    • Eugene Lee

      Exempt teachers are those who
      (1) are paid at least twice minimum wage (as of 7/1/14 when the minimum wage increased from $8/hr to $9/hr, that means $37,440 per year – when it increases again to $10/hr on 1/1/16, that will mean $41,600 per year),
      (2) are licensed or certified by the State of California,
      (3) spend more than 50% of their time engaged in teaching and
      (4) customarily and regularly exercise discretion and independent judgment in their job duties.

      If that is you, then are exempt. If not, then you are probably owed tens of thousands of dollars, not only for missed rest breaks (meal and rest breaks can’t be combined into one mega-break) and late meal breaks, but also likely for unpaid overtime, not to mention heaps of penalties.

  • Mayra

    Can my employer force me to take a meal break even if I don’t work five hours? For example, the other day I was asked to take a break, 45 min into my shift, I only worked 2.5 hours that day. I knew that I wouldn’t be there 5 hours. At what point can my employer ask me to take a break?

  • law

    Is my employer in violation if the meal break is only provided after six hours of work in a ten hour work day?

    • Eugene Lee

      Generally speaking, yes, the employer must permit the meal break to be taken no later than the end of the fifth hour (i.e., before the start of the sixth hour). That is a violation entitling you and your co-workers to penalties of 1 hour’s pay for each day that happened.

  • Kelly

    What if you have to sit at your desk and work through a meal break?

  • Ángel avila

    i work 5 hours a day. and the required me to take a break (30)minutes.
    but its and hour before i get off. let say start @6 pm break its @10. and i get off @ 11:30. my question its, its there any form of denying the break and finish the shift without break. i meant 5 hours its not a killing hours. and where can i download the form. to sign it.

  • Jeanette

    my husband works from 5 a.m. In the morning to as late as 10 o’clock at night But most times comes home at 7 p. M. He only gets one 15 minute break and one half hour lunchisn’t he supposed to get another breakand how would he report this

    • C. Montoya

      He should have 2- 15 min breaks. More than 12 hours work shoukd be 2 meal breaks.

  • Jessica

    If I work 7.75 hrs… Am I entitled to 2 rest periods as well as a meal period.. Management is trying to say the second rest period is not guaranteed and is up to them on a daily basis to decide if we get it

    • C. Montoya

      You are entitled to 2 breaks along with a minimum of a 30 min meal break.

  • Justin

    If I can’t feasibly take 1 of my rest breaks during my shift can I be disciplined by my employer?

  • Glenn

    I work from 11pm to 7:30am….my employer gives me a 15 min break after 3 hours and then a lunch break 3 hours after that. My lunch is 6 hours after my start time. I work 6 hours with just a 15 minute break. Is that legal? My last 15 minute break is at 7:15 till 7:30 when I go home…something g is not right with this break and lunch time allowed. Is this legal? Thank you

  • james

    I was hired at arco ampm gas station in Roseville, Ca last week.
    I was told when I work midnight to 8 am I don’t get a lunch but I will be paid for a 30min lunch. I also don’t get any breaks. I was also told that if I’m not finished with my “job duties”(stocking,mopping, cleaning etc.) by the end of shit I have to continue working until done unpaid. So 9/21/14 I was scheduled 5pm-1am. I didn’t get any breaks or a lunch then I was required to stay til 130am, only being paid til 1am. They take out 30min for lunch but I didn’t get a lunch? The 2nd manager takes several moke breaks throughout her shift & gets lunch. This doesn’t seem right. But I’m worried I’ll get fired if I speak up cause I’m so new. What should I do? James

    • Robert Burns

      sue them

  • Fran

    I would like to ask if something a former workmate mentioned to me is true on not. He mentioned that if someone who is on a break gets it, interrupted, and is asked to attend to something for say 2 to 3 minutes, on resuming his/her break, that person is entitled to begin the break again at square one, at a reset time of a new 15 minutes and not at the time their break got interrupted (i.e. if they were 7 minutes in). Is this true?

  • Fran

    I would like to ask if something a former workmate of mine said is true or not. He mentioned that if someone who is on a break, meal or rest, gets interrupted halfway in, and is asked to do something for say 2 to 3 minutes, on returning to continue his/her break, the person I was informed is entitled to restart his/her break from the start, that is, there is a reset and the person starts at square one with a new 15 minutes instead of where he/she left off before being interrupted (say if they were 7 minutes originally). Is this true?

  • Fran

    Under California State Employment Laws, if a non-exempt employee decides to “quit” his/her job, is it true that they can demand payment of what they are owed in wages at point in time and the employer has to comply. Or does the employee have to provide 2 week notice?

    • Robert Burns

      no such thing as notice to quit
      don’t expect a good reference

    • AD

      In California, an employee does NOT have to provide advance notice prior to quitting their job. If they provide at least 3 days notice (72 hours), then the employer MUST provide their final check and accrued and unused vacation at the end of the 72 hours. If the employee does not provide at least 72 hours notice, the employer has up to 72 hours from the time the time the employee quits. So if you decide to quit today at 5:00 pm, the employer has until 5:00 pm on Friday to provide you your final pay and vacation, pay if any.

  • antiphon98

    I am a waitress at a small restaurant – work 4 hours, take a lunch break, and work 5 hours after that. So I’d be entitled to 2 10-min breaks. The problem is I am the only waitress there during the first 4 hours, so if I take a 10 min break then, there will be no one there. After my lunch break, there is another waitress so breaks are not a problem.

  • pandy

    I work at a company that allows OT. For our regular 8hour shift, we get 2 15min breaks and a 45min unpaid lunch. If I work for a total of 10 hours (8+2OT) am I entitled to a third 15min break? What if I work a full 12 (8+4OT)?

  • Bill

    Been working for a guy for over ten years. Half a dozen employees. No breaks ever. Never hinted, ata break of any kind. He once said that as much as we drive getting from a to b that was a break.