Today I’ll be discussing meal break waivers. This is the second post in my “Understanding California Meal Breaks” series. As explained in the first post in this series, the general rule is that California employers must provide employees who work more than five hours with meal breaks. But there are certain, limited exceptions to this general rule. This post discusses the circumstances under which employers and employees may agree to waive employees’ meal breaks. In next week’s post, I will explain the other main exception to the general rule: providing employees with on-duty meal breaks.
An employee and an employer may mutually agree that the employee will waive (or relinquish the right to) a meal break. California Labor Code § 512(a) . There may be a number of reasons why the employer and employee agree to such a meal break waiver; for example, the employee may want the additional 30 minutes of pay, the employer might have a need for low staffing during the employee’s shift, or the employee simply may have lunch or dinner plans after work. However, a meal break waiver is only allowed in very limited circumstances. If an employee’s shift is six hours or less, the meal period may be waived by mutual consent of the employer and employee. So, if an employee works six-and-one-half hours, she and her employer are prohibited from a meal break waiver. Likewise, if an employee’s shift is 12 hours or less, the second meal period may be waived by mutual consent only if the first meal break was not waived. This means that an employee who works, for example, 14 hours may not waive this second meal break, regardless of whether or not the first meal break was waived.
Though not required, I always recommend that employers reduce this waiver to writing. And, equally important, the employer should document every day that the employee and employer agree to such a waiver.
It makes me cringe as an employment law attorney practicing wage and hour law to hear an owner of, say, a fast food restaurant tell me that he is not worried about getting sued by employees for missed, untimely, or interrupted meal breaks because “everyone signs a meal period waiver.” The reason for my feeling of disconcert is, as explained above, a meal break waiver is prohibited where an employee works more than six hours (or more than twelve hours for purposes of a second meal break). So, if you are an employer that is not providing a meal break to employees who work more than six hours because of a “meal break waiver” you had them sign, you may be liable for significant civil penalties and damages, including the premium pay I discussed in my previous post.
If you would like to learn more about employee meal break rights or about lawful meal break waivers, please contact our Orange County office today.
