Within 5 Hours

“I’m confused about how to calculate when employees need to start their meal break.”

Your HR Survival Tip

California is very specific about the timing of the meal and rest breaks for non-exempt (hourly) employees so it’s important you understand the law.

The 30-minute unpaid meal break must begin WITHIN the first 5 hours of an employee’s day. This means you must have them clock out on or before 4 hours and 59 minutes from clocking in that day. Once the timeclock hits 5 hours from clock in time, they are late with their meal period and owed one hour of premium pay that day. You are expected to enforce the meal break so you should seriously consider scheduling these breaks to ensure everyone starts their break within the allotted time and you have coverage for them while on break.

  • Clock in at 7:05 am requires a clock out on or before 12:04 pm.

  • Clock in at 8:30 am requires a clock out on or before 1:29 pm.

  • Clock in at 9:00 am requires a clock out on or before 1:59 pm.

A 10-minute paid rest break is available to the employee when they work “the greater of a 4-hour period.” While you can’t restrict what they do and where they go on a rest break, you can let them know they won’t be paid any extra time taken. It is only 10 minutes. An exception is if the distance to and from your own break room would make 10 minutes unreasonable. The rest break relies less on enforcement and more on making sure your employees know the breaks are available and they are allowed to take them. If employees state they aren’t allowed to take their rest breaks, you may have to pay an hour of premium pay so be sure everyone knows how to get their breaks. Again, you are allowed to schedule these.

Premium pay is paid at their regular rate of pay and should be on the wage statement (pay stub) as a separate line item so you have proof you’ve paid it. “Regular” rate of pay legally means their average hourly rate for the week if they earn different hourly rates. If your company rounds clock in/out times, remember that is only how you’re calculating their pay. Don’t use rounding when calculating whether or not they get the premium pay. The meal break is different and the law is very clear about that 5 hours. Let us know if you’d like help putting all of this in a written policy to ensure compliance.

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