Labor Law Information Resource Center
Waived Meal/Lunch Breaks
➮ Can employees waive their lunch break?
➮ Meal Breaks and Overtime Pay?
➮ What happens if an employee works through their meal break or does not take a meal break?
For a number of good reasons companies should address and regularly revisit with employees both what the law requires and company
policy regarding meal breaks. Among these reasons are the potential negative impact missed meal
breaks can have on work-schedules, overtime pay, employee expectations, morale, & possible legal
California law states that most non-exempt employees must receive an uninterrupted 30-minute meal
break for every 5 hours worked. Other states have similar rules. It is worth noting that several
key issues related to meal breaks were determined for the state of CA by one landmark legal case
from April 2012.
In Brinker Restaurant Corporation (parent company for the Chili’s and Maggiano’s restaurant chains) v. Superior Court of CA, the court unanimously ruled that employers are required to provide certain benefits for employees working at least five consecutive hours in a day. According to Business Attorney Melinda Garcia:
- A lunch/meal break of at least 30 minutes in which no work activities are performed
- A written waiver with employees so employees can skip a meal break if the work shift is six hours or less.
- Time for meal breaks, but employers are not required to ensure that no work is performed during meal breaks.
- Establish a written agreement with employees regarding on-duty meal periods if circumstances allow for this during the work period.
Can employees waive taking a lunch break?
According to Employment & Labor Attorney Matthew Cecil (Las Vegas, NV), employers can require employees to take their meal break. In addition, he states:
- If an employee refuses to comply with company meal break policy and works through their meal break, she/he is subject to penalties established by the company, including being fired.
- Employees have the option to waive their lunch break and employers must prove in writing it was waived. Employment & Labor Attorney Bruce Kent Snyder (Las Vegas, NV) further states that if an employer does not agree to this arrangement, employees must take the lunch period as originally scheduled.
- Employers must pay employees for all hours worked, even if those hours were not authorized.
- If an employee initiates a break in his or her work schedule for personal reasons (for example, to accommodate childcare or personal business), that interruption is not considered a split shift since the break was not established by the employer.
What happens if an employee works through their meal break or does not take a meal break?
Employees can choose to work through a meal or a rest break, or take a shortened meal break.
However, if doing so violates company policy,
the employee can be penalty
as established by the company:
If an employee cannot take a meal break for a work-related reason, the employee is
entitled to receive one hour of pay (called "premium pay", California Labor Code Section 226.7)
at their normal hourly rate even if the employee meal period is only 30 minutes long.
|ELIGIBILITY FOR PREMIUM PAY|
Employee chooses to not take a meal break
Employee chooses to take a shortened meal break
Employee unable to take meal break for work-related reason
Employee meal break interrupted by work
Employee unable to take uninterrupted 30-minute meal break
Employee skips meal breaks due to supervisor coercion or pressure
Employee chooses to waive meal break with nothing in writing
In April 2007, the California Supreme Court found this additional pay fit the legal definition of “wages” and is therefore subject to a three-year statute of limitations. See Murphy v. Kenneth Cole Productions Inc. Meaning, employers found guilty of violating CA meal break law can be held liable for reimbursement of one hour of pay for each missed meal break for up to three years of employee pay.
Meal Breaks and Overtime Pay
If you normally work an 8 hour shift with a 30 minute meal period, and you voluntarily chose to
skip a meal, you will end up working 8.5 hours that day and will therefore be entitled to half an
hour of overtime. Your employer is required to pay you for this time at your overtime rate.
However, many employers have a policy that no employee may work overtime unless they have gotten
prior approval from a supervisor, and employees are sometimes terminated for repeated violations
of this policy. If you do skip a meal break, and will be entitled to overtime if you leave work at
your normal time, you should talk to your supervisor and either get approval for the overtime or get
permission to leave work a half hour earlier. It is quite possible that your employer will tell you
that you should take your meal period so that they are not in the situation of having to let you
leave 30 minutes early or pay overtime. You can be terminated for failing to
comply with such requests.
What Can Employers Do to Help Ensure Compliance with Meal Break Law(s)?
- Based on the laws for your state schedule meal & rest breaks for all employees to take when practical.
- Instruct management to be aware of & follow the laws of their state for meal & rest breaks.
- Never belittle or put pressure on employees who take their entire rest & meal breaks.
- Do not encourage or incentivize employees to skip or work through any break.
- Maintain accurate records for the taking of rest & meals breaks, such as those provided by a time-keeping device or system.
- Create and distribute to employees a company policy manual that covers employer & employee responsibilities for following all state & federal labor laws.
- Have employees sign and date a receipt for the policy manual. Give a copy to the employee & keep the original in their personnel file.
- Include clear procedures for those times when employees miss meal or rest breaks during the workday. Have employees sign an acknowledgement that s/he is voluntarily choosing to work through a scheduled meal break.
- In constructing your company policy manual, be sure to reference your state’s laws and rules regarding employee rights & employer disciplinary options up to and including termination.
- Depending on your state’s laws, include information that your company can require any employee to take a meal break if not doing so could result in overtime.
- Include clear information about the consequences or penalties for failing to comply with any company policy, including such things as clock-in/out requirements for starting & ending the work day and for rest and meal breaks.
How Shift2Work Can Help
- Shift2Work’s time-clock service accurately tracks all employee clock-in/out activity: the beginning/ending of work shifts, rest breaks, and meal breaks.
- Shift2Work’s Lunch Monitor Alert can enhance compliance with state labor laws & reduce unauthorized overtime. Click here for more information about this feature.
**For informational purposes only. Not to be considered as legal advice on this or any matter. Shift2Work recommends web site users/readers seek competent legal counsel on all legal matters.