What Does the “End of the Fifth Hour” Really Mean? (Or Why Our Break Calculator Isn’t Wrong)
So when it comes to late lunch violations under California labor law, the general public (and from time to time, even some lawyers) like to argue with us about what the end of the fifth hour really means. Our break calculator has been tested many times and it is 100% correct. Even so, some people continue to insist that our calculator is broken (and maybe we need to get our heads examined too).
In all fairness, the calculation can be very confusing. So let’s try to clear this up once and for all.
First, let’s look at the law. Here’s a direct quote from the California Supreme Court in Donohue v. AMN Servs., LLC (2021) 11 Cal. 5th 58, 61:
“Under California law, employers must generally provide employees with one 30-minute meal period that begins no later than the end of the fifth hour of work and another 30-minute meal period that begins no later than the end of the 10th hour of work. (Lab. Code, § 512, subd. (a); Industrial Welfare Commission (IWC) wage order No. 4-2001, § 11(A) (Wage Order No. 4).).”
The question arises, what does “end of the fifth hour of work” really mean?
Let’s look at an example. If a shift starts at 8 am, here’s how the calculation goes.
Start of Shift: 8:00 am (0 minutes into the shift)
End of First Hour: 8:59 am (59 minutes into the shift, i.e., the end of the first hour of work)
End of Second Hour: 9:59 am (1 hour 59 minutes into the shift, i.e., the end of the second hour of work)
End of Third Hour: 10:59 am (2 hours 59 minutes into the shift, i.e., the end of the third hour of work)
End of Fourth Hour: 11:59 am (3 hours 59 minutes into the shift, i.e., the end of the fourth hour of work)
End of Fifth Hour: 12:59 pm (4 hours 59 minutes into the shift, i.e., the end of the fifth hour of work)
Ding! Ding! Ding! 12:59 pm is the “end of the fifth hour of work”. If you punch 8 am into our break calculator on our website, it will say the same exactly the same thing: 12:59 pm.
When given the above example, people will insist that our calculator is wrong and that the end of the fifth hour is 1:59 pm. That is not correct. 1:59 pm would be end of the SIXTH hour of work, 2:00 pm would be start of the SEVENTH hour.
To look at it another way: if you punch in at 8 am and punch out at 1:59 pm, how many hours are you owed for? Why, 6 hours of course! That is why 1:59 pm would represent the end of your SIXTH (not FIFTH) hour of work.
If anyone out there has read this and still thinks we’re wrong, let’s talk. We’re always happy to shed more light on this confusing issue.
Karrie, love this suggestion!
“1:59 pm would be end of the SIXTH hour of work, 2:00 pm would be start of the SIXTH hour.” 2:00 PM would be the start of the SEVENTH, not SIXTH hour.
Good catch sir. I have fixed the typo. You are indeed correct. It now reads ” 1:59 pm would be end of the SIXTH hour of work, 2:00 pm would be start of the SEVENTH hour.”
I love your calculator! And, I appreciate that you do the calculation correctly. When I’m trying to explain it to someone without using a calculator, I do this, assuming someone starts working at 7:30 am:
Start at 7:30 am… and subtract one minute… 7:29 am…
then hold up one finger for each hour… 8:29, 9:29, 10:29, 11:29, 12:29… five fingers = 5 hours… so the lunch break needs to start by 12:29 in order to be compliant. :)
I was let go suddenly by my employer through text. Now I have worked here since January until just a couple of hours ago finding out the news. I’m a box truck driver and have expierenced a lot of odd things with this company. Being told by my supervisor to clock out different times so he doesn’t get in “trouble”. Working through lunches and not taking breaks. Having to alter my lunch breaks constantly so that they would not be caught for me working passed my fifth hour. Being told to work pass our 138 mile radius. I have documented all these situation and even have videos of the supervisor telling me to work through lunches and changing punches. Not being payed overtime or double time but instead saying his screen doesn’t allow him to pay because the days overlap. Strange. I’ve put up with this job because this is all I can find at the moment and feared being fired if I said something. Supervisor said he can’t answer any questions and doesn’t know when they’re paying us our last check. I thought if an employer lets you go you are to recieve you last check on the time of termination. I feel wrongfully terminated because he says it was a breach of contract with the third party Amazon. Don’t know if I have a case. Seeking legal advice.