When Calculating the 10 Hours of Work for a Second Meal Break, Do You Deduct the One Hour Given in the First Break?
Is the break determined by: 1) the length of the employee’s shift or 2) the number of hours the employee actually works (net hours)?
Assume the employer gives a first meal break of one hour. The options are: 1) the second meal break would be at the 10th hour, regardless of how long first break was taken or 2) the second meal break would only be required after 11 hours.
California Labor Code Section 512(a) requires a second 30-minute meal break if an employee works at least 10 hours in a day. In relevant part, it states:
An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, a second meal period may be waived . . .”
There are three phrases that seem to indicate net hours. The phrase “may not employ” indicates hours actually working, as opposed to resting.
The phrase “work period” also seems to imply a period in which the employee would actually be working.
The phrase “except that if the total hours worked” also implies working as opposed to resting.
Sadly, there is no express language in the statute on this subject. However, the three phrases above seem to indicate it is net hours.
Remember also the rationale for a meal break. The idea is that employees can be more proficient and there are less accidents if they are well-nourished and rested. After receiving a one-hour meal break (it would equally apply to a 30-minute break), the employee should be rested enough to work until the 11th hour.
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