We have an employee who is scheduled to work an eight-hour shift and routinely clocks out for his meal break after working only two hours. We are fine with this but worry that it may violate the law since it’s so early in his shift.
California law on meal breaks is one area where there is clarity regarding an employer’s obligations. An employer may permit an employee working an eight-hour shift to take a meal break at any time before the end of the fifth hour of work.
Meal Break Obligations
An employer’s obligations regarding meal breaks are set forth in Labor Code Section 512. Specifically, Section 512(a) provides that an “employer 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….”
There are provisions in Section 512 regarding shifts of six hours or less and shifts of more than 10 hours that are not relevant to this question.
Section 512 was closely analyzed in the key California Supreme Court case of Brinker Restaurant Corporation v. The Superior Court of San Diego County, 53 Cal.4th 1004 (2012). The Supreme Court described in detail, based on legislative history and statutory interpretation rules, an employer’s duties regarding meal breaks.
For employees working an eight-hour shift, the employer must provide a reasonable opportunity for employees to take an uninterrupted 30-minute meal break. During this break, the employer must relinquish all control of the employees, the employees must be relieved of all duty, and they must be free to spend the 30 minutes of their break as they wish.
When Meal Breaks Must Be Taken
In Brinker, the Court held that Section 512 requires a first meal break no later than the end of an employee’s fifth hour of work.
There can be confusion regarding the phrase “no later than the fifth hour” of work. The first hour is when the employee has worked between zero minutes and 60 minutes. Then the employee begins the second hour of work. For an employee working eight hours, the meal period must begin sometime before s/he has completed working five hours.
The CalChamber recommends that, to ensure compliance, employees clock out for their meal break no later than 4 hours 59 minutes into their shift. See the section on Meal Break in the HR Library on HRCalifornia.
Employees who start working at 8 a.m. should begin their first meal break no later than 12:59 p.m.
This is the extent of the timing requirement for meal breaks for eight-hour shifts. Section 512 does not impose any other timing requirements, nor do any other laws, regulations, or interpretations.
The Brinker decision confirmed that Section 512’s timing of meal breaks is strict, but only to the extent that the meal break must be taken no later than the end of an employee’s fifth hour of work. A meal break cannot be taken too early. It is when the employee working an eight-hour shift requests to take the meal break after completing five hours of work that the law requires the employer to deny the request.
The key obligation for employers is to provide the time to take the meal break and relinquish control of the employees for at least 30 minutes before the end of the fifth hour. That’s it. If an employee wants to take their meal break during the first hour of work, or the second hour, or the third hour, the law permits this.
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.
