Can my employees waive their lunch?

An employee is entitled to a 30 minute meal period for every 5 hours worked but the meal period must start at hour 5.  This must be an uninterrupted, consecutive 30 minutes, where the employee is relieved of all duties.  An employee can waive a meal period – in writing if they work 6 hours but if the employee works more than 10 hours in a day, they must be given a second 30 minute meal period which cannot be waived if they waived the first (there is however an exception in the healthcare industry – speak with a lawyer to see if you qualify).  Meal periods do not need to be paid by the employer.

We recently had a case where the employees asked to waive their lunch break because they were working a six hour shift.  The business owner agreed. However the employees did not sign a meal waiver and when we evaluated the business, some shifts worked were actually 6 hours and 5 minutes, or 6 hours and 10 minutes – exceeding the 6 hour mark.  So even though our client and the employees both agreed to waive the required meal period, the business owner is still liable to the employees for damages since the amount of time work exceed what could be waived.

Although an employee can waive their meal period in limited circumstances, it is highly encouraged that you speak to an attorney so this is done correctly.  A meal period waiver is not required to be in writing by the California Labor Code or Wage Orders it’s important to document such a waiver, because if a lawsuit does arise, you will want the waiver to be in writing.

As a business owner it’s important to have a clearly written policy that provides for meal and rest breaks, to properly train your employees and to keep accurate records.  If you’d like to know the basics on whether your employees qualify to waive their lunch break, email me at Cindy@HacklerFlynnLaw.com and I’ll provide you the requirements.

We do not intend the information above to be legal advice.  By providing this information, we are not acting as your lawyer.  If you need legal advice, you should contact us or another law firm for help.

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