California - can I take a lunch break close to the start of my shift by my own choice?
2 attorney answers
California law says that an employer needs to give a meal break "no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.” The key term is "no later than" which means that you may take a meal breaking earlier. For most non-exempt hourly workers, meal breaks are unpaid. Your choice to take your meal break on the first hour within the five hour period is generally acceptable.
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It really depends on the risk your employer is willing to take.
The law requires the employer to give you a reasonable opportunity to take a 30-minute off-the-clock, duty free and uninterrupted meal period in any shift where you work more than 5 hours, and that meal period should be placed as close as practical to the mid-point of the shift. If the employer does not allow this, it can be liable to you for one hour of wage penalties for each day there is a violation.
The law does not prohibit your employer from allowing you to take the meal period you want, but the risk is that some time in the future your time records would reflect a violation of the law stated above, placing the employer to be exposed to a claim of violation of the law. As such most employers will not allow you to do what you wish, simply to avoid expensive future lawsuits.
If you and your employer are both willing to allow you to have an early meal period, there is nothing stopping the two of you from agreeing to that. If your employer insists on a more traditional mid-shift meal period, you are stuck with that.
Good luck to you.
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