CACI No. 2765. Meal Break Violations - Introduction (Lab. Code, §§ 226.7, 512)
Judicial Council of California Civil Jury Instructions (2024 edition)
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2765.Meal Break Violations - Introduction (Lab. Code, §§ 226.7,
512)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] pay because [name of defendant] did not
provide one or more meal breaks.
Employers are required to provide meal breaks at specified times during
a workday. [Specify any scheduling requirement(s) of the meal breaks at
issue if delay or interruption is at issue.] In this case, [name of plaintiff]
was entitled to a 30-minute unpaid meal break for each period of work
lasting longer than five hours. This means that over the course of a
workday, [name of plaintiff] was due [specify which meal breaks are at
issue, e.g., a first meal break that starts after no more than five hours of
work and a second meal break to start after no more than ten hours of
work.]
A meal break complies with the law if the employer does all of the
following:
1. Provides a reasonable opportunity to take uninterrupted 30-
minute meal breaks on time;
2. Does not impede the employee from taking 30-minute meal
breaks;
3. Does not discourage the employee from taking 30-minute meal
breaks;
4. Relieves the employee of all duties during 30-minute meal breaks;
and
5. Relinquishes control over the employee’s activities during 30-
minute meal breaks, including not requiring the employee to stay
on the premises.
An employer, however, is not required to police meal breaks, ensure that
an employee takes a meal break, or ensure that an employee does no
work during a meal break.
“Workday” means any consecutive 24-hour period beginning at the same
time each calendar day.
[Meal breaks, which are unpaid, and rest breaks, which are paid, have
different requirements. You should consider claims for meal break
violations separately from claims for rest break violations. For example,
providing an unpaid meal break does not satisfy the employer’s
obligation to provide an employee with a paid 10-minute rest break.]
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New December 2022
Directions for Use
This instruction assumes a nonexempt employee who is entitled to one or more
meal breaks. It should be read before the other meal break instructions. (See CACI
No. 2766A, Meal Break Violations - Essential Factual Elements, and CACI No.
2766B, Meal Break Violations - Rebuttable Presumption - Employer Records.) It
may need to be modified in certain limited circumstances, for example, if waiver of
meal breaks is at issue. (See CACI No. 2770, Affırmative Defense - Meal
Breaks - Waiver by Mutual Consent, and CACI No. 2771, Affırmative
Defense - Meal Breaks - Written Consent to On-Duty Meal Breaks.)
Specify the meal breaks at issue and any scheduling requirements in the second
paragraph.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Different meal period rules apply to
certain employees of emergency ambulance providers; do not give this instruction in
a case involving those employees. (See Lab. Code, §§ 880-890, added by initiative,
Gen. Elec. (Nov. 6, 2018), commonly known as Prop. 11.) Other exceptions to the
meal period rules exist, which may require modifying this instruction. For example,
persons employed in the motion picture and broadcasting industries are entitled to a
meal break after six hours of work. (See Lab. Code, § 512(d); Wage Order 12-
2001.) Other exceptions to the meal period rules include most instances where the
Industrial Welfare Commission authorized adoption of a working condition order
permitting a meal period to commence after six hours of work, certain commercial
drivers, certain workers in the wholesale baking industry, and workers covered by
collective bargaining agreements that meet specified requirements. (Lab. Code,
§ 512(b)-(e).)
The Labor Code and the wage orders exempt certain employees from receiving
premium pay for meal period violations (for example, executives). The assertion of
an exemption from wage and hour laws is an affirmative defense, which presents a
mixed question of law and fact. (See Ramirez v. Yosemite Water Co. (1999) 20
Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].)
The definition of “workday” may be omitted if it is included in another instruction.
Give the optional final paragraph only if both meal breaks and rest breaks are at
issue in the case.
Sources and Authority
• Right of Action for Meal and Rest and Recovery Period Violations. Labor Code
section 226.7.
• Meal Periods. Labor Code section 512.
• Meal Periods. Cal. Code Regs., tit. 8, § 11010 et seq., subd. 11.
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• Employer Duty to Keep Time Records. Cal. Code Regs., tit. 8, §§ 11010-11030,
11060-11110, 11150, ¶ 11(C), 11040-11050 & 11130-11140, ¶ 11(A), § 11120,
¶ 11(B), § 11160, ¶ 10(D).
• “Workday” Defined. Labor Code section 500.
• “An employer’s duty with respect to meal breaks under both section 512,
subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period
to its employees. The employer satisfies this obligation if it relieves its
employees of all duty, relinquishes control over their activities and permits them
a reasonable opportunity to take an uninterrupted 30-minute break, and does not
impede or discourage them from doing so. What will suffice may vary from
industry to industry, and we cannot in the context of this class certification
proceeding delineate the full range of approaches that in each instance might be
sufficient to satisfy the law.” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1040 [139 Cal.Rptr.3d 315, 273 P.3d 513].)
• “[U]nder the relevant statute and wage order, an employee becomes entitled to
premium pay for missed or noncompliant meal and rest breaks precisely because
she was required to work when she should have been relieved of duty: required
to work too long into a shift without a meal break; required in whole or part to
work through a break; or, as was the case here, required to remain on duty
without an appropriate agreement in place authorizing on-duty meal breaks.”
(Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 106-107 [293
Cal.Rptr.3d 599, 509 P.3d 956].)
• “Accordingly, we conclude that Wage Order No. 5 imposes no meal timing
requirements beyond those in section 512. Under the wage order, as under the
statute, an employer’s obligation is to provide a first meal period after no more
than five hours of work and a second meal period after no more than 10 hours
of work.” (Brinker Restaurant Corp., supra, 53 Cal.4th at p. 1049.)
• “An employee who remains on duty during lunch is providing the employer
services; so too the employee who works without relief past the point when
permission to stop to eat or rest was legally required. Section 226.7 reflects a
determination that work in such circumstances is worth more - or should cost the
employer more - than other work, and so requires payment of a premium.”
(Naranjo, supra, 13 Cal.5th at p. 107.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390-391
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
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