Our employees start work at 8 a.m. The owner of the company requires that meal breaks start at 1 p.m. While I have told him that meal breaks should not be scheduled later than 4 hours and 59 minutes into the shift, he insists that a 1 p.m. meal break is compliant since it is exactly 5 hours after work commences and not more than 5 hours. He has asked for written proof of the “4:59 rule.” Is there an “official” document stating that meal breaks must start 4 hours and 59 minutes into an employee’s eight-hour shift?
There is no statute, regulation, or Labor Commissioner opinion that expressly mandates that meal breaks start no later than 4 hours and 59 minutes (“4:59 practice”) into an eight-hour shift.
The 4:59 practice is based on a commonly recognized best strategy to avoid the strict liability of a meal break violation.
Strict Meal Break Requirements
California law provides that employers “shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.” A 30-minute meal period that begins no later than the end of the 10th hour of work also must be provided. (Labor Code Section 512(a)).
There are limited exceptions to these requirements, but an employer should presume that the meal breaks must follow these strict requirements.
Failure to Follow Strict Requirements Results in Liability
If an employee is not given the opportunity to take a timely and uninterrupted meal break, the employee is due one hour of wages as a wage premium (Labor Code Section 226.7(c)). The wage premium is based on the employee’s regular rate of pay.
In 2021, the California Supreme Court reinforced the importance of the technical requirements of meal breaks when it ruled that employers could not round the time-clock punches for meal breaks. Donohue v. AMN Services, LLC 11 Cal.5th 58, 275 Cal.Rptr.3d 422, 481 P.3d 661 (2021).
The court clearly established that time increments, even small ones like seconds, are crucial to determining whether a meal break time punch is compliant.
“To avoid liability, an employer must provide its employees with full and timely meal periods whenever those meal periods are required,” the California Supreme Court said, noting that “even a minor infringement of the meal period triggers the premium pay obligation.”
The importance of seconds in accurate timekeeping explains why employers are counseled to apply the 4:59 practice. In the question’s scenario, if the employee clocks in at 8:00:00 a.m. and clocks out for lunch at precisely 1:00:00 p.m., there is no violation.
However, if the punch out is at 1:00:01, the meal break has started one second into the sixth hour. This is a meal break violation. The importance of seconds is why the 4:59 practice is recommended. This avoids any issue regarding compliant start times.
Moreover, an employer should not consider pre-populating time punches with “compliant” meal break times. The law requires accurate reporting of meal breaks. Time records that show meal breaks starting every day at precisely 1:00:00 p.m. for all employees will be immediately suspect and invite examination of time-keeping practices.
‘Official’ Rules Require Test Cases
Employers like the one here that require employees to take their meal breaks exactly at the end of the fifth hour risk meal break violations based on seconds.
For a California employer to obtain an “official” ruling that the meal break should start no later than 4 hours and 59 minutes into an 8-hour shift, a company must be willing to allow a challenge to their practice of requiring the break at exactly the fifth hour.
Because meal break violations often form the basis of Private Attorneys General Act (PAGA) claims, this may be a battle not worth fighting.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. 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.
