Employers are often confused as to exactly what “the end of the employee’s fifth hour of work” means and exactly when the meal period must be provided: Should the meal period be provided no later than 4 hours and 59 minutes into the employee’s shift? Or at the exact five-hour mark?
The most prudent approach is to err on the side of caution and provide a meal break that begins no later than 4 hours and 59 minutes into the employee’s shift. For example, if an employee begins an eight-hour shift at 8 a.m., he/she must start the meal period by 12:59 p.m., and for an eight-hour shift beginning at 9 a.m., the meal period should start no later than 1:59 p.m.
The second meal period must be provided no later than the end of the employee’s 10th hour of work. Note that if an employee has already taken a half-hour first meal break, the 10th hour of work will start 10.5 hours into the shift.
In Brinker, the employees argued that meal periods had to be provided on a “rolling” five-hour basis. A “rolling basis” would mean a second meal break would be required if more than five hours remained in a shift after the time an employee finished the first meal break, even if the employee worked less than 10 hours total. The court rejected that argument, and instead held that the second meal break must only be provided if an employee works more than 10 hours in a day.5
As a result, if an employee takes a meal break early in a shift and then works more than five hours after the meal break, a second meal break is not required unless the employee works more than 10 hours that day.
The following chart helps demonstrate how to calculate meal break timing for an employee who begins work at 8:00 a.m.:
| Time | Hour of Work |
|---|---|
| 8:00 a.m. to 9:00 a.m. | 1st hour of work |
| 9:00 a.m. to 10:00 a.m. | 2nd hour of work |
| 10:00 a.m. to 11:00 a.m. | 3rd hour of work |
| 11:00 a.m. to 12:00 p.m. | 4th hour of work |
| 12:00 p.m. to 1:00 p.m. | 5th hour of work (provide meal period no later than end of this 5th hour or 12:59 p.m.) |
- “Late lunches,” after the end of the employee’s fifth hour, are still not permitted. The meal period must be provided by the end of the employee’s fifth hour of work.
While a meal break typically falls approximately in the middle of a shift, “early lunches” may be allowed in certain circumstances. The court noted the general rule that, in a normal eight-hour shift, one rest break should fall on either side of the meal break. Unusual or exceptional considerations may render this general timing infeasible. For more information, see Timing of Rest Breaks in Rest Breaks.
For example, in certain service industries, operations may justify departure from the general rule, and it may be necessary to schedule the meal period early in the work shift. A server who starts his/her shift at 4 p.m. may need to take an early meal break at 5 p.m., before the evening dinner rush. Even in this situation, it is recommended that employers avoid scheduling the meal period immediately after the employee begins the shift (using the above example, not right at 4 p.m. or shortly thereafter). Instead, allow a reasonable work period to occur before the meal period.
