On-Duty Meal Breaks - California Meal Break Rights
This is the third post in my “Understanding California Meal Breaks” series. In my previous posts, I explained the general duty of an employer to provide its employees with meal breaks and that an employer and employee may agree to waive meal breaks under certain circumstances. This post continues the discussion regarding exceptions to the general rule in California that employers provide employees meal breaks; specifically, I will discuss when an employer may depart from its duty to provide 30-minute duty-free meal break, and instead provide an on-duty meal break.
In Certain Circumstances, an Employee Can Agree with His or Her Employer to Receive an On-Duty Meal Break
In addition to the “meal break waiver,” there is another option available to employers that wish to forgo providing employees a duty-free (or off-duty) meal break: the on-duty meal break. An on-duty meal break is authorized in only very limited circumstances. There are three requirements that must be met for an on-duty meal period to be lawful: (1) the employer and employee must have entered into a signed agreement authorizing the on-duty meal period; (2) the signed agreement must expressly state that the employee may, in writing, revoke the agreement at any time; and (3) the nature of the work must prevent the employee from being relieved of all duty during the meal period.
The most litigated and contention of these requirements is, of course, the third requirement – the “nature of the work” requirement. In determining whether the “nature of the work” allows for an on-duty meal break, courts and administrative agencies, like the California Labor Commissioner, look at various “objective” factors, like the nature of work the employee is performing, whether other employees are available to relieve the employee, and whether the employer’s work product or process would be destroyed or damaged if the employee were relieved of all duty. (Here is a recent opinion letter published by the Labor Commissioner that covers this topic in further detail.)
The California Department of Labor Standards Enforcement also has identified examples of jobs that may be eligible for on-duty meal breaks due to the nature of the work involved with the jobs; these jobs include a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site. But employers should note that even employees with these jobs may be scrutinized by the courts and the Labor Commission and, depending on the facts, may be found to be ineligible to receive on-duty meal breaks. This is why it is so important to consult with an employment law attorney before deciding to offer or accept on-duty meal breaks.
But Even When an Employee Agrees to an On-Duty Meal Break, the Employer Must Actually Provide the Employee Time for a Meal Break
An on-duty meal break does not operate the same way as a waiver. That is, the employee must still receive a meal break, though the break will be on-duty. So, it is important for California employees and employers to know that even if all other on-duty meal break requirements are met, the employer may still be in violation of an employee’s meal break rights if the employee does not get a chance to eat while on duty.
If you feel you are not being provided lawful on-duty meal breaks or are not being paid for on-duty meal breaks, please contact our Orange County, California office today.