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How do i go about suing my employer for wages owed to me because I haven't received any of my 30 min. breaks within 8 hour shift

San Diego, CA |

I have been working for a pet shop for over 3 years and and have never recieved a clocked out 30 minute lunch break. I always eat on the clock and Im never relieved for a break. Nor do they have a break room in the building. I have time cards to prove that i have stayed clocked in for the full 8 hours. It is my understanding that I am owed an hours pay for every day that I worked an 8 hour shift without clocking out for a break and it is a managers job to relieve me. I would like to know how I would go about suing the owner of the company for this money because i have talked to other lawyers and basically because I am suing for a calculated total of about 5000 dollars and only make about 11 dollars an hour they think my case is not worth their time. Can't I sue for lawyer fees as well?

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Attorney answers 5


Yes, you may sue for lawyer's fees as well.
Another option you should consider is pursuing a case through the Department of Labor Standards Enforcement, also known as the Labor Commissioner. This is an attractive option if your case is not worth a large amount of money.

Good luck!

Tuvia Korobkin

Tuvia Korobkin


Actually, I should clarify. If your lawsuit is only for missed meal breaks (and not for other violations like unpaid wages, overtime, etc.) you may NOT be able to sue for attorney fees, according to a recent California Supreme Court case called Kirby v. Immoos Fire Protection, Inc.


You are entitled to two ten minute breaks and a duty-free meal period of at least 30 minutes. For each break or meal period that your employer did not provide to you - you are owed one hour of pay plus attorneys' fees. I recommend having an employment law attorney write a demand letter to your employer.


You also have a duty to "mitigate" your damages.
Did you INFORM the bosses/owner that you were
not taking your lunches and that you were suing?
Also . . . you had your lunch "on-the-clock?"
Were you working WHILE eating OR just sitting
down and eating (not working)?



As stated by the DIR (Calif. Department of Industrial Relations), In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512. There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. And a subsequent meal period must be called not later than six hours after the termination of the preceding meal period. IWC Order 12-2001, Section 11(A)

Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. For each break or meal period that your employer did not provide to you, you are entitled to one hour of pay plus attorneys' fees.
I would be happy to discuss this matter with you personally but certainly agree that you should have an employment law attorney write a demand letter on your behalf.


Mr. Korobkin is correct that you may not be entitled to attorney's fees for going after penalties for the missed breaks -- the law is currently unsettled in this area. But if you are also entitled to overtime or there are any unpaid wages, attorney's fees would be available. You can avoid this concern by pursing a claim for free with the Division of Labor Standards Enforcement. The DLSE is moving slowly these days because of budget cuts, staff shortages and increased workload, but it can get the job done.

The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: *** 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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