Smoke Break Laws in California

Savvy California employees know that they are guaranteed certain breaks throughout the day, including rest breaks and meal breaks. They know that they are guaranteed overtime for working enough hours in a workday or workweek if they are paid by the hour. It’s less well-known whether certain employees are guaranteed the right to additional breaks for smoking or other habits. Below we discuss the labor law rights of smokers in California. If you are a California employee with wage and hour concerns or an employer facing labor law allegations, call an Orange County labor law attorney for advice and representation.

Meal Breaks and Rest Breaks

California law requires employers to permit non-exempt employees to take meal and rest breaks throughout the workday. Employees are guaranteed at least one paid 10-minute rest break for every four hours of work. Employees are also guaranteed at least one unpaid 30-minute meal break for every five hours of work. Employees can waive their right to the meal break if they will work no more than six hours in a given workday or waive their second meal break if they will work no more than 12 hours in a given workday.

An employee who works a standard eight-hour day from 9:00 am to 5:00 pm, for example, would be entitled to one 30-minute lunch as well as one 10-minute rest break. If they worked from 7:00 am to 5:00 pm, they would be entitled to a second 10-minute rest break as well.

Employers generally cannot require employees to work during these breaks. An employee can voluntarily stick around to work, but, outside of limited exceptions, it must be their choice. Employers can require employees to stay “on-call” or “on-duty” during meal or rest breaks under limited circumstances, such as jobs where the nature of the job prevents an employee from being relieved of all duties during break (e.g., a lone late-night security guard).

During these breaks, employees can do whatever they choose. They can choose to stay at their desks, they can leave the building to get coffee or food, or they can walk outside to have a cigarette. If an employee needs a break to smoke during the workday, they can utilize their allotted rest break or meal break to do so.

Smoke Breaks

While California employees are guaranteed rest breaks and meal breaks as discussed above, no California law provides for additional breaks for smokers. While on break, your employer cannot stop you from going outside to smoke, outside of certain limited exceptions where employers can require employees to stay on active duty during a rest break. Outside of guaranteed rest breaks, however, employers are not required to accommodate an employee’s smoking habit. If an employer refuses to let an employee take smoke breaks, the employee does not have a wage and hour claim.

Note that employers are well within their rights to prohibit smoking within the building. Employers cannot, however, fire workers for legally smoking cigarettes in designated areas or outside the workplace. California employers cannot legally fire an employee for engaging in lawful activities outside of the workday.

If you are an employee with wage & hour or other employee rights concerns in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employee rights allegations, employee contract disputes, or other employment law issues, contact a seasoned and professional California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.