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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?

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

Posted

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.

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Posted

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 only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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