Tuesday, November 29, 2022

Premium Pay Penalty Due When Employee Given Late Meal Break

Yesterday our store was very busy, so I could not let my employee leave for a meal break until very late in the day. Do I owe the employee a one-hour meal period penalty because their lunch break was late, or is it owed only if they didn’t get a meal break at all?

California’s meal period penalty is owed both when an employer fails to provide an employee with a meal break at all, as well as when the meal break is provided later than is legally required. The penalty is known as premium pay.

Meal Break Mandate

California law mandates that meal breaks must be provided on shifts over a certain length, and also sets a time by which meal breaks must be taken. Employees who work more than five hours must be provided with a meal break of at least 30 minutes, and that meal break must begin no later than the end of the employee’s fifth hour of work.

This means the employee must clock out for a meal break no later than 4 hours and 59 minutes after starting work. Note that there is an exception allowing an employee who works no more than six hours to waive their meal period with consent of the employer.

These rules regarding meal period requirements are contained in Labor Code Sections 226.7 and 512, as well as Section 11 of each of California’s Industrial Welfare Commission (IWC) Wage Orders.

Premium Pay Penalty

Labor Code Section 226.7(c) requires a penalty of one additional hour of pay at the employee’s regular rate of compensation “if an employer fails to provide an employee a meal … period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission….”

Since providing a meal break that starts later than the end of the employee’s fifth hour of work is not in accordance with the timing requirement in the state Labor Code and the IWC Wage Orders, one hour of premium pay is owed to an employee who is not provided a meal break until after that time. This is true even though the employee eventually was provided with a meal break later in the day.

Second Meal Break

A second meal break is required when an employee works longer than 10 hours. The meal break must begin no later than the end of the 10th hour of work. An employee may waive the second meal break if they will work no longer than 12 hours and have taken the first meal break as required.

A meal break penalty is owed to an employee whose required second meal break is not provided, or provided later than the required time. If the employee were to be denied both meal breaks or given both meal breaks late, however, the statute requires payment of the penalty only once for each workday.

This means an employee who was provided late meal breaks multiple times in one day, or given no meal breaks at all, would receive only one hour of premium pay.

Note that there is an exception to the meal break rules for employees working in the motion picture industry under IWC Wage Order 12, which allows those employees to work up to six hours without a meal period, even without a waiver.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Ellen Savage

Ellen Savage
Ellen Savage
Ellen Savage joined the CalChamber in 1990 and currently serves as an HR adviser. She has been assisting employers on the Helpline since 1993. She was the editor of eight editions of the California Labor Law Digest and author of the CalChamber's California Hiring to Termination Guide. Her experience also includes practicing at a large Sacramento law firm and presenting at dozens of employment law seminars statewide. She holds a J.D. from Lincoln Law School.

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