Section 512 of the California Labor Code provides that an employer may 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, except that if the total work period per
day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.
Also, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. The code section makes no differentiation between exempt and nonexempt employees.
What if you fail to provide for such meal breaks, or don’t insist that your employees in fact take them?
Labor Code Section 226.7 provides, as a penalty, that the employee is entitled to one hour’s additional pay for each day on which such a break is not provided for, but only if there is an order of the Industrial Welfare Commission requiring such pay.
Guess what? The IWC order dealing with this subject has such an order, but it applies only to non-exempt employees. The weird result is that you are required to provide for a meal break for exempt employees, but there’s no penalty if you fail to do so. Golly, the law can be downright strange sometimes!
Our recommendation: provide meal breaks for your exempt employees, and require that they use them, just as you do for non-exempt employees. You can never tell when some bureaucrat or judge will decide that the law should be interpreted differently.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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