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Required meal breaks in California can be waived by choice?

Los Angeles, CA |

I worked from home and my employer allowed me to work thru my lunch break. The laws i could find only say that I can waive it if I work 6hrs or less. So my question is, should they have made me take a lunch, or can i choose to work through it, and not be allowed to recover the hour a day since i didnt take lunch.

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Attorney answers 3


Good question. That issue is the subject of much debate and has recently been argued before the California Supreme Court in the Brinker case. The Court was presented with the question of whether an employer must require employees to take their breaks or merely make sure the breaks are made available to them. Recent cases have held that the breaks only need to be made available. We are waiting for a definitive answer which should be coming down soon.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


Attorney Kirschbaum is correct. We are all awaiting the California Supreme Court's decision on this very issue (Brinker International v. Superior Court).

In the meanwhile, your understanding of current California law is correct:

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

Frank Wei-Hong Chen

Frank Wei-Hong Chen



Both Mr. Kirschbaum and Mr. Chen are correct . . . and so are you! The current state of the law in California is that an employer must provide a meal break of at least 30 minutes to every employee who works more than five hours in one workday. However, if the employee works no more than six hours in one workday, the employee can waive the meal break. An employer may not require or demand this waiver. If the employee works over six hours in one workday, then the employee may not waive the meal break.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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