Understanding Meal Breaks & Overtime
Many of us in the commercial photography industry love our jobs. We are used to working long hours and can get so absorbed in what we’re doing that we might forget what time it is or when we last ate. However, just because on-set personnel love what they do does not mean that we can forget the benefits they are entitled to as employees. There are two areas in this arena that are often misunderstood: meal breaks and overtime pay. These might not be sexy topics and the rules governing them can feel foreign and cumbersome in the context of on-set work culture, but staying compliant in these areas is incredibly important. It requires some math and understanding of the relevant laws on the part of both the employer and the employee, but OOTB is here to help!
In this installment of Ask OOTB, we’re going to answer some of your most common questions around meal breaks and overtime:
When do I have to give meal breaks to my crew?
What is a meal penalty?
What do I get charged when there’s a meal penalty?
What if my employee doesn't want to take their meal break?
What does waiving a meal break actually mean?
What is overtime? Are employees paid overtime for hours beyond 10 hours in a day?
My employee doesn’t have an hourly rate. How are day rates paid in California?
Since OOTB is based in California, we’ll focus on California labor laws for most of our answers. If you’d like more information on labor laws in other states, we found the following resources (with fun interactive maps!):
Overtime Laws By State (by Quickbooks)
Meal Break Laws By State (Department of Labor Website)
Before we get into your questions, we have just a bit of housekeeping:
Ask OOTB is an ongoing series in which we share some of the most commonly asked questions that we receive, along with relevant information that can help you better understand all things payroll. If you have a question that you would like us to tackle, please submit it to us via our Ask OOTB online form.
And an important note: The information provided in this article does not, and is not intended to, constitute legal, tax, or financial advice. All information, content, and materials available in this article are for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. We highly recommend that you seek the advice of an attorney or tax professional rather than relying solely on the information provided herein.
Question #1: When do I have to give meal breaks to my crew?
This depends on what state you’re in and whether you are doing a film/video or still photography shoot. In California, for still photography, according to California wage order #4, you need to provide employees with one 30-minute, unpaid meal break to begin no later than the 5th hour of work. Employees who work more than 10 hours must also be offered a second meal break to be taken no later than the 10th hour of work.
For film or video, employees need one 30- to 60-minute unpaid meal break for more than six hours of work and two meal breaks for more than twelve. This is detailed in California wage order #12.
In both cases, employees need to take their meal breaks BEFORE the time limit is up. For example, if Luna the hair and makeup stylist is working 12:00pm-6:00pm (more than five hours) on a still photography shoot, she needs to take her meal break before 5:00pm (5:01pm is too late). Here are some charts for how this breaks down:
For more information on meal break requirements, please visit our resource page on meal and rest period guidelines.
Question #2: What is a meal penalty?
A meal penalty is additional wages that an employer must pay to an employee if they do not receive breaks as required by state and federal labor laws. This additional premium applies if the employee is not offered an unpaid 30-minute break, or if they are given their break late. An employee can waive certain (but not all) meal breaks if they have elected to do so by signing a meal waiver form in advance.
Question #3: What are the costs for a meal penalty?
A meal penalty is equal to one hour of pay at your employee’s regular hourly rate for each workday that the meal period is not provided. The penalty is paid to the employee as regular wages.
Question #4: What if my employee doesn’t want to take their meal break?
For still photography shoots, if the employee is working fewer than six hours, they have the choice to waive their meal break, so long as you both mutually agree on this point and your employee has signed a meal waiver form IN ADVANCE. If they’re working six hours or more, your employee is required to take their first meal break. If they’re working a ten-hour day, your employee must take their first meal break, but they have the choice to waive their second meal break, again if you both mutually agree on this and they have signed a meal waiver form in advance.
Question #5: What does waiving a meal break actually mean?
An employee can indicate whether they would like to have the option to waive certain meal breaks by signing a meal break waiver form in advance. Electing to waive a meal break on a meal break waiver form gives the employee the option to do so on an individual workday. It does not mean they are choosing to give up their breaks on every workday. For example, OOTB offers a meal waiver form during our onboarding process. We keep it on file for each employee. The employee then has the choice to waive their breaks whenever they want or need to.
Waiving a meal break means choosing to work instead of taking an unpaid 30-minute meal break. The employee is paid for the work they are doing at their regular hourly rate. If the idea of an hourly rate confuses you, keep reading!
Question #7: My employee doesn’t have an hourly rate. How are day rates paid in California?
Although many people in the photography industry are accustomed to being paid “day rates” as independent contractors, as non-exempt employees being paid in compliance with federal and state labor laws, they must be compensated at a regular hourly rate rather than with a lump sum. So, while the industry continues to communicate day rates, the compensation for many roles must actually be converted into hourly rates. OOTB can help you with these conversions. Please reach out if you have any questions!
We hope this post has been helpful in clarifying your understanding of meal break and overtime rules on set, and that we’ve answered all of your questions. However, if something still seems confusing, please don’t hesitate to contact us through our Ask OOTB online form to get the answers you need!
Sources:
California Wage Order 4 (for still photography)
California Department of Industrial Relations. (Republished 2016). Industrial Welfare Commission Order No. 4-2001 Regulating Wages, Hours and Working Conditions In The Professional, Technical, Clerical, Mechanical and Similar Occupations. https://www.dir.ca.gov/IWC/IWCArticle04.pdf
California Wage Order 12 (for film/video)
California Department of Industrial Relations. (Republished 2021, January 1). Industrial Welfare Commision Order No. 12-2001 Regulating Wages, Hours and Working Conditions in the Motion Picture Industry. https://www.dir.ca.gov/IWC/IWCArticle12.pdf
Meal Breaks Charts:
Out of the Box Solutions. (2021) Guidelines for Meal & Rest Periods. https://ootbsolutions.com/meal-rest-period-guide
California Overtime Laws:
California Department of Industrial Relations. Overtime. https://www.dir.ca.gov/dlse/faq_overtime.htm