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My employer has been paying for my lunch hour for past 2 years. Now he wants to stop. Is that ok?

Los Angeles, CA |

My employer has been paying for my lunch hour for past 2 years. It was very nice of him of course but now he stopped. Did the employer create some kind of expectation and isn't he stuck with paying us? Also I found out that he didn't pay for some of my overtime. But if I were to count all the hours that my employer paid for my lunch hours, I was, in fact, overpaid. Could I still ask for my unpaid overtime to my employer?

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Attorney answers 5


Unless you have an express agreement to the contrary, you are an at will employee. As an at will employee your employer can change the terms and conditions of your employment at any time and for any lawful reason. That means the employer can decide to not pay you for your lunch. There is no theory that would allow you as an at will employee to force the employer to pay for your lunch break.

As to the overtime, I think you would have a difficult time proving the right to overtime if, when you subtract the hour of time you were paid for lunch, the overall work you performed was less than eight hours.

Good luck to you.

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Thanks for your comment. As for my overtime, sometimes I worked 10-11 hours a day. But like I said, the employer had been essentially paying for an extra hour so it balances out, in fact, I was overpaid. So I guess I'm wondering how this would play out if I were to bring a case against my employer.

Neil Pedersen

Neil Pedersen


I think, based on what you have just said, that you would likely have a right to some unpaid overtime. You would look at the day and see how many hours did you actually perform work (i.e., less any duty-free lunch period). If the time you actually performed work is more than 8 hours in any particular work day, or more than 40 hours in any particular work week, then you would be entitled to overtime. On those days when the employer paid for your duty-free one hour meal breaks but you did not work more than 8 hours, I do not think the employer will be allowed to use those "over-payments" to offset the overtime from another day.


Employers are not required to pay employees for their lunch breaks, unless the employee is not permitted to have an uninterrupted break from work for at least 30 minutes. But if the pay is gratuitous, the employer has the right to stop this benefit at any time. Overtime is a completely separate issue. Employers must pay non-exempt employees overtime premiums for all hours worked in excess of 8 in a workday and 40 in a workweek. Legally speaking, the employer would not be able to offset any unpaid overtime due because it generously paid for your lunch break. But sometimes, you have to look at the bigger picture. You will have to decide whether the amount the employer may owe is worth the probability of alienating the people you work for due to its ending a fringe benefit.

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.


Assuming you are an at will employee, your employer can change your pay on a prospective or going forward basis.

Your employer is not obligated to pay for your lunch and can stop at anytime. Further, if your employer does not provide a thirty minute uninterrupted meal break and you are a non-exempt employee, then you would be entitled to one (1) hour of pay as a penalty.

Finally, as for the overtime, if you work more than eight (8) hours per day or over forty (40) hours per week, you would be entitled to overtime. I agree with my collegues that you should consider that an overtime claim may sour your relationship with your employer for a relatively small benefit, especially an employer that has been particulatly generous. The statute of limitations would be four (4) years and you may wish to wait until after you leave to pursue such as claim.


If you are an at will employee, the employer may change the terms of your employment at any time. The amount due to you for overtime is a separate thing. Has he refused to pay the amount owed to you for overtime?

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Absent a contract between your employer and yourself which states that you are entitled to paid lunch breaks it is most likely a lawful action made by your employer made as a necessary business decision. Unless you are forced to work through your lunch breaks and the payment was made as a way of compensating you for your missed breaks (a situation to which you must have consented consented) the action is likely lawful and you will not have a valid claim for lost wages or unpaid meal breaks.

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