What Happens If I Take My Lunch After 5 Hours in California?
Understand how delayed lunch breaks in California can impact employee rights, employer obligations, and potential wage penalties.
California labor law includes specific protections for workers regarding meal breaks. These regulations aim to ensure employees receive adequate rest during the workday. Understanding the timing requirements is crucial, as failing to meet them can lead to consequences for employers.
Meal Period Timing Rule
State law requires employers to provide employees who work more than five hours in a day with at least one 30-minute meal period.1State of California Department of Industrial Relations. Rest and Meal Periods Overview According to California Labor Code section 512(a), this first meal break must start before the employee completes their fifth hour of work. For instance, an employee beginning work at 9 a.m. must be allowed to start their meal break before 2 p.m.
This rule ensures breaks occur relatively early in a shift. The California Supreme Court affirmed in Brinker Restaurant Corp. v. Superior Court (2012) that the break must be offered no later than the end of the fifth hour.
For shifts exceeding ten hours, employees are entitled to a second 30-minute meal period. This second break must begin before the end of the tenth hour of work. If the employee starting at 9 a.m. works past 7 p.m., they must have started their second meal break before that time. These timelines are detailed in the Labor Code and Industrial Welfare Commission (IWC) Wage Orders.
Potential Wage Penalties
If an employer does not provide a meal period that complies with these timing rules—for example, if the first break starts only after the fifth hour ends—California Labor Code section 226.7(c) mandates a penalty.2State of California Department of Industrial Relations. Meal Periods FAQ The employer must pay the employee one additional hour of pay at the employee’s “regular rate of compensation” for each workday the violation occurred. This is often called “premium pay.” It applies whether the break was missed entirely or simply started late without a valid employee waiver.
Calculating this premium pay requires using the employee’s “regular rate of compensation.” The California Supreme Court clarified in Ferra v. Loews Hollywood Hotel, LLC (2021) that this rate is the same as the “regular rate of pay” used for overtime calculations. It includes not just the base hourly wage but also other consistent earnings like shift differentials, commissions, and non-discretionary bonuses. An employee earning an hourly wage plus commissions would receive premium pay reflecting both income streams.
The California Supreme Court also ruled in Naranjo v. Spectrum Security Services, Inc. (2022) that this premium pay is considered “wages,” not just a penalty. This designation means unpaid meal period premiums must appear on employee wage statements, as required by Labor Code section 226. It also means these unpaid wages are subject to final pay rules, potentially leading to additional waiting time penalties under Labor Code section 203 if not paid promptly when employment ends.
Employer Responsibility
Employers in California are responsible for ensuring compliant meal periods. This involves more than just permitting breaks; it requires actively providing the opportunity for a timely meal period, as outlined in Labor Code section 512(a). Employers must structure schedules and manage workloads so employees can start their first 30-minute break before the end of the fifth hour.
As clarified in the Brinker decision, “providing” a meal period means employers must relieve employees of all duties for the full 30 minutes, give up control over their activities, and offer a reasonable chance for an uninterrupted break. Critically, employers cannot impede or discourage employees from taking their timely breaks through policies or pressure.
While the employer must make the timely break available, the Brinker ruling also noted that employers generally do not need to ensure employees perform no work during a properly provided break if the employee chooses to do so voluntarily. However, if an employer knows or should know that an employee is working during a meal break, that time must be paid, according to IWC Wage Orders. The fundamental duty remains to relieve the employee of work and allow them to take their break within the required timeframe.
Reporting or Enforcement Avenues
Employees who believe their employer failed to provide a meal period before the end of the fifth hour can pursue the matter through state channels. One option is filing a wage claim with the California Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE).3State of California Department of Industrial Relations. How to File a Wage Claim This claim seeks the one hour of premium pay owed for each day a compliant meal period was not provided.
Filing typically involves completing an “Initial Report or Claim” form (DLSE Form 1) and potentially DLSE Form 55 for meal period issues, often submitted online, by mail, or in person. Supporting documents like timesheets or pay stubs are helpful. The time limit, or statute of limitations, for filing a wage claim for these violations is generally three years from the date the meal period was missed or delayed, as confirmed in Murphy v. Kenneth Cole Productions, Inc. (2007).
After a claim is filed, the DLSE usually notifies the employer and may schedule a settlement conference (under Labor Code section 98.3) where a deputy attempts to mediate a resolution.4State of California Department of Industrial Relations. Policies and Procedures for Wage Claim Processing If no settlement occurs, a formal “Berman hearing” (under Labor Code section 98(a)) may follow, where evidence is presented to a hearing officer who issues a decision.
Alternatively, employees can sue their employer directly in civil court for unpaid meal period premiums, a right preserved by Labor Code section 218. A lawsuit might allow for more extensive information gathering. If successful, an employee could recover the unpaid premium wages plus interest (Labor Code section 218.6). Under Labor Code section 218.5, an employee who wins a wage claim lawsuit is typically entitled to recover reasonable attorney’s fees and costs. The statute of limitations for filing a civil lawsuit is also generally three years.
