Waitresses and waiters: Understanding break policies

On behalf of Sullivan Law Group APC on Friday, September 7, 2018.

Virtually every industry has some instances of employers conducting illegal practices at the expense of the lowest workers’ wages. The food service industryarguably sees these abuses the most with the issue of employee tipping being a topic of conversation for years now. 

However, another illegal employment practice is for the employer to deny waitresses and waiters sufficient breaks. California law explicitly states that employers must give their workers enough breaks throughout the day, and employees should seek to rectify a situation if they cannot go on as many breaks as they should.

Rest breaks

For all employees in California, the number of breaks they need depends on how many hours they work consecutively any given day. For example, a waiter who works fewer than three hours and 29 minutes a day would not receive a break. However, any shift over three and a half hours warrants at least one 10-minute break. When employees work between six and 10 hours, they need to receive at least two rest breaks. The number of breaks increases from there, and the employee would also likely receive overtime at that point. 

Meal breaks

In addition to rest breaks, waiters and waitresses also need to receive meal breaks. While a meal break is not necessary if the shift is shorter than five hours, an employee must receive a break if the shift is any longer than that. The meal break should be at least 30 minutes and give the employee sufficient time to eat a meal. That means the employer should not expect the employee to do any work, no matter how minuscule, during this time. Employers cannot combine meal and rest breaks. 

Payment for breaks

In other states, employers do not have to pay for breaks, and employees must clock out before taking one. However, in California, those 10-minute rest breaks require payment, so employers should not force employees to clock-out before taking one. However, employers can have meal breaks unpaid.