Jun 10

Meal Break Waivers from Soup to Nuts


In California, the law entitles a nonexempt employee to an unpaid, 30-minute meal period after five hours of work and a second unpaid, 30-minute meal period after 10 hours of work. If you think you’ll never go hungry again, however, think again. Your employer can make you work through a meal period if you validly waive your right to it. Luckily, California law protects employees by strictly regulating meal break waivers. 

What Are the Rules for Meal Break Waivers in Most Industries?

In most industries, a nonexempt employee can waive his first meal period if: (1) he consents to skip the meal period; and (2) he works no more than six hours on that workday.1 In contrast, an employee can waive the second meal period only if: (1) he consents to skip the meal period; (2) he works no more than 12 hours on that workday; and (3) he didn’t waive the first meal period of the workday.2 In other words, he can’t waive both his first and second meal periods. 

Whether an employee waives the first meal period or the second, the waiver must comply with two requirements. First, it must be intelligent. That doesn’t mean that the employee must be a Rhodes scholar. Rather, he must understand that he is skipping a meal period. Second, he must voluntarily agree to skip the meal period.3 In other words, an employer may not hold the employee’s wages hostage, let alone hold his daughter hostage, to get him to agree to waive a meal period.

What Are the Rules for Meal Break Waivers in the Health Care Industry?

Bad things can happen if a nurse works on an empty stomach during a triple bypass. Luckily, the law imposes two conditions on meal break waivers by a health care industry employee when he works more than eight hours in one workday.4 First, he must agree in writing to waive the meal period.5 Second, both he and his employer must sign the agreement.6 Even then, the employee may revoke the waiver at any time if he gives at least one day’s written notice.7 

The law governing meal break waivers applies to nearly the entire universe of nonexempt employees in the health care industry: (1) those who provide patient care; (2) those who work in a clinical or medical department (including pharmacists); (3) those who work primarily or regularly as members of patient care delivery teams; or (4) licensed veterinarians, registered veterinary technicians, or unregistered animal health technicians who provide patient care.8

The health care industry is a growing field in California. For purposes of meal break waivers, however, the “health care industry” only includes hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, 24-hour clinics, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology, or dialysis.9 The law doesn’t apply to primary care or rehabilitation clinics. 

  1. Lab. Code §512(a). 

  2. Id

  3. Civ. Code §§1566-1567. 

  4. Wage Order 4-2001(11)(D), Wage Order 5-2001(11)(D), Lab. Code §516(b). 

  5. Id

  6. Id

  7. Id. 

  8. Wage Order 4-2001(11)(G), Wage Order 5-2001(11)(G). 

  9. Wage Order 4-2001(11)(J), Wage Order 5-2001(11)(J). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.