In California, 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 thirty 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 in limited circumstances.
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.
If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.
So, the only workaround for most employers is to agree to pay the extra hour in exchange for allowing the employee to take a meal break after the start of the 6th hour. This is usually not a preferred arrangement unless the employer is the party needing the later break.
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