I work as a server. I am forced to take a 30 min unpaid break. I lose tables and $. Can I opt out of the break and keep working?

Asked almost 2 years ago - San Diego, CA

My side work piles up while I'm away and I lose out on tables. When I get back from my 30 min unpaid break my workload is more and I've missed out on tables and tips. My employer punishes me if I violate my meal break but it's not my fault. How can I opt out of this break legally? It should be my own right to continue working. Sitting down mid shift only ruins my flow and makes me tired. If these laws are designed to benefit employees, why can't I say " no thank you" if it's hindering me?

Attorney answers (2)

  1. Kristine S Karila

    Contributor Level 16

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    Lawyer agrees

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    Answered . Recently, the California Supreme Court clarified that while employers must provide breaks and meal periods (at least 30 minutes unpaid after 5 hours of work), the employer does not need to monitor or make sure the employee takes his or her breaks/meal periods. However, employers are advised to make sure their employees take the breaks/meal periods to avoid being sued with a claim that the breaks/meal periods were not given and thus, their rights were violated. These class action lawsuits are very frequent now and costly to employers. You may ask your employer if you can keep working and agree to sign a document waiving your meal/breaks, however, your employer does not have to agree. In addition, if you work under 6 hours, you may sign an agreement that you waive your meal period - however, again your employer can decline.

  2. Neil Pedersen

    Contributor Level 20

    Answered . The employer and employee are permitted to waive the 30-minute meal period under the following circumstances: when an employee’s work period for the day does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. But neither the employee nor the employer can be forced to waive the meal period. For example, if the employee wants to waive the meal period but the employer does not, then the meal period cannot be waived.

    Neither the Labor Code nor Wage Orders require that this waiver be in writing, however it is advisable and prudent for an employer to memorialize such agreements in writing whenever possible, so it is likely you will be required to sign one if the employer will allow it.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more

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