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Meal Period Waiver - Unicorn. Same, Same
By VICKY BROWN
If you’re an employer in California, I bet you know all about the meal period.
You know, if someone works more than a 5 hr shift, they have to have a minimum of a 30 minute meal period. And that time has to be free of work, meaning no work obligations at all. And they have to be able to go where they wish – so if you are thinking, I’ll give the meal period, but they have to stay onsite – well that’s not going to count as a meal period free of work.
Now, if they either don’t take a meal period in time, or it isn’t long enough (meaning they come back after 25 minutes instead of 30) – well then you, as the employer, are required to pay them a penalty of 1 hour’s pay. And that’s in addition to the time they actually worked – so if they work through the meal period, you have to pay them for the 30 mins they worked, plus the 1 hour penalty.
And if they work more than 10 hours in a day – well then, they have to get a 2nd meal period of 30 minutes or more.
And yes, it is 1 hour’s pay, even if they only missed the time by 5 minutes. Oh, and by the way – don’t think of it as additional pay. What you’re actually doing is paying the penalty fee for missing the regulation guidelines. And again, yes – you have to pay it on the same payroll that they missed the meal period.
OK – so right about now you may be thinking “but didn’t I hear something about a meal break waiver”?
“…meal period waivers do exist. And they can be helpful. But I’m afraid not quite as helpful as many people think. That’s because, they are allowed only in very limited circumstances.“
Why, yes you did. It’s not a figment of your imagination – meal period waivers do exist. And they can be helpful. But I’m afraid not quite as helpful as many people think. That’s because, they are allowed only in very limited circumstances.
For instance, as I said, an employee working more than a 5 hour shift has to get a minimum of 30 minutes for a meal period. That is, unless their shift is ending at 6 hours or less, AND there is a meal waiver.
Waivers also work for that second meal period. So if someone works more than 10 hours in a day, they can use a meal period waiver provided they don’t work longer than 12 hours.
And here are the fun quirks about meal period waivers:
- meal period waivers have to be by mutual consent – so both the employer and employee have to be on board (and I hope it goes without saying – the employer can’t pressure the employee in any way)
- you can’t use more than one in a day – so you wan waive the 1st meal period, but then you have to take the second meal, or vice versa
- you should document every day that a meal waiver is used – vs. having some generic form in the file to cover all possible instances (I think an auditor might frown on that practice)
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Actually, the best practice is to have a Meal Period Waiver form available. On the specific day of the missed meal period, the employee may (if they wish, I can’t stress that enough. You can’t make them or pressure them in any way.). The employee may submit the form requesting a waiver.
There should be a place for their manager to approve. And then a copy should go to the employee and a copy in the file.
And you should also be very careful about basically having a waiver for almost every day. Because that just shows that you’re thumbing your nose at the meal break law – and the authorities with authority don’t like that.
So again – first, give the proper meal periods. Second, if the first one gets missed, and the employee is finishing for the day in 6 hours or less; or the second one gets missed and the employee is leaving for the day at 12 hours or less – well then, a meal break waiver could be an option.
Again, don’t use blanket waivers, and it’s not a good look to have one on file for every day.
And remember – the reason all this is a thing in the first place is because your team’s big, beautiful, brains need time to rest and reset. They deserve a break – let them have it.
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