Hamner Law Offices, APC - California Labor & Employment Attorneys

Food Service Workers Food service workers (i.e., servers, bussers, cooks, dishwashers, host staff and bartenders) are some of the most exploited workers in California. These workers often work long and grueling shifts for little pay. It is therefore California labor policy that these workers should be provided rest and meal breaks during their shifts, and should be paid for all "off the clock" work.

Rest and Meal Breaks

Food service employees working shifts of at least five hours must receive an unpaid 30-minute meal period in which they are completely relieved of all duties and free to leave the work premises. The meal period can be waived by the employee for shifts that do not exceed six hours. A second such meal period is required for shifts that exceed ten hours. The employer is responsible for ensuring that employees take their meal period within the first five hours of work. Meal periods cannot be waived, nor may an employee leave work a half hour early instead of taking a meal period.

Employees must clock-out for the meal period, unless all operations cease and all employees take their break at the same time. Employees are entitled to one hour's wages at their regular rate of pay for every day the employer fails to provide a meal period. If employees are required to remain at the job site in order to be available to wait on customers or perform other work but must still clock out for their meal periods, they are entitled to payment at their regular rate of pay for the meal period plus the premium of one hour's pay. Employees who have not received meal breaks or premium compensation for unprovided breaks are entitled to back pay of one hour's pay per day.

If the nature of the work prevents employees from being able to leave (such as where a single employee works a convenience store register during late hours), the employee may take a paid "on-duty" meal period, provided they sign an on-duty meal period that states it is revocable by the employee at any time. An employee who refuses to sign such an agreement must either be paid one hour's premium pay at the employee's regular rate of pay if required to work through a meal period or given a different shift or otherwise permitted to take an off-duty meal period.

Paid rest periods of ten minutes for every four hours or major fraction thereof must be provided and made available to hourly employees. The employer must clearly communicate to hourly employees that they are authorized and permitted to take rest breaks, which must come as near as practicable to the middle of the four-hour period. Rest periods may not be grouped together nor taken at the end of the day in order to leave early, unless the employee elects without coercion to waive one or more rest periods. Unless there is a clear waiver, an employer must make arrangements to freely allow employees to "break" themselves or provide relief employees. Employees are also entitled to one hour's pay at their regular rate of pay for every day on which they were not provided one or more paid rest periods.

"Off the Clock" Work

Food service workers must be paid for all time worked. Employers cannot require their employees to perform any tasks before clocking in or clocking out. If this happens, these employees must be paid for all time worked. Employees performing duties such as changing in or out of uniform, doing side work, re-stocking and running errands must be compensated for this work. This is especially the case with "side work," which managers often ask their workers to do before they clock in or after they clock out. Under California law, employers must often make retroactive payment to their employees for this off the clock work.