by Patrick E. Turner
Employee Rights Attorney
Mission Viejo, California
Q: I am a salaried employee, required to work 40 hours a week. Our new manager says office hours are 8:30 5:30. I do not need a one hour break for lunch. I’d rather use my 20 minute break and get back to work. Do I have to take an hour off for lunch?
A: “Your rights concerning meal periods depend on your status as either an ‘exempt’ or ‘nonexempt’ employee,” says employee rights attorney Patrick E. Turner of Don D. Sessions Law Corp. in Mission Viejo.
“Employees who are exempt are not legally entitled to a meal period. Just because you are salaried doesn’t mean you are exempt. As an exempt employee, your employer can conceivably have you work from 8:30 a.m. to 5:30 p.m. or longer, regardless of whether you take an hour for lunch. Under these circumstances, it might be beneficial to you to take the hour for lunch.
“However, an employer must provide a 30 minute mean period to all nonexempt employees who work in excess of five hours per day.
“The law also prohibits ‘waiving’ the meal period by mutual agreement of the employer and employee. In fact, a new law requires your employer to pay you an extra hour’s wage if you don’t take a lunch break. So your employer has good reason to insist on strict compliance with the law.
“Most employers seek to work with employees to solve problems and address concerns. Explain to the employer the minimum requirements of the law (30, not 60 minutes for nonexempt employees and no minimum break for exempt employees). Work to achieve a negotiated resolution.
“Ultimately, if you are unable to work out this dispute with your employer, it may be time to find an employer more open to constructive dialog.”