Meal Break Waiver

“I’ve heard I can have employees sign a meal break waiver so I don’t have to worry about them taking a meal break. How does it work?”

Your HR Survival Tip

There are employers who think California will allow an employee to waive the rights the state has given them. If only it were true. Instead, California works hard to ensure employee rights are enforced.

As you already know, California requires an unpaid, off-duty meal period of at least 30 minutes any day the employee works 6 or more hours and a second unpaid, off-duty meal period of at least 30 minutes any day the employee works more than 10 hours. Since there are a few differences with meal and rest breaks based on industry, please check the appropriate Industrial Welfare Commission (IWC) order for the rules for your industry.

• Meal Break Waiver for Under 6 Hours — This waiver is used when employees are scheduled to work less than 6 hours that day. We don’t often use this waiver simply because it seems redundant since you aren’t even required to provide a meal break unless they are working 6 or more hours.
• Meal Break Waiver for a Second Meal — This waiver is used when employees are scheduled to work more than 10 but less than 12 hours in a day. Normally, the employee is entitled to another unpaid, off-duty 30-minute meal break after 10 hours. If the employee took their first meal break (within the first 5 hours), they may choose to waive their second meal break. However, the employee may only waive one meal break, not two. If the first meal break was at least 60 minutes, that extra 30 minutes can count toward the second meal period. Otherwise, it’s your responsibility to ensure the employee gets the relief needed to take a meal break.
• On-Duty Meal Break — This is a paid meal break of at least 30 minutes that is used when you are unable to relieve the employee of all duty. While the employee may not be able to leave the work area, they should be able to take their meal nearby without being pressured to return to work before the 30 minutes. This is most often used when an employee is unable to leave their work location because they are caring for one or more individuals who cannot be left alone, such as working as a nanny or home healthcare worker. There are other exceptions that may be listed in your IWC order.

When an employee waives their meal break, they may be eligible for penalty pay each day it happens. This is one extra hour of pay to the employee and it should show up on a separate line item on their wage statement (pay stub) as either Penalty Pay or Premium Pay. Even if the meal break would have been 30 minutes, the employee still receives one hour of pay.

You can’t force the employee to sign a waiver or on-duty form. Even if they do sign, this is not a forever situation. You should have updated forms signed periodically. The employee can revoke their “request” for the waiver and having them sign periodically reminds them of their rights, which provides better protection for you. California categorizes that penalty pay as a wage owed the employee, which is why “premium pay” is more recently being used to describe it. They don’t want the employee to feel they are being penalized. However, if not managed correctly, this premium pay can truly be a costly penalty for you.