When Is It Permissible For My Employees To Have An On-Duty, Paid Meal Break?
Answer: Almost never. California law generally requires that hourly employees receive a 30-minute unpaid meal break any time they work more than five hours in a day. One exception to that rule is that if the employee works no more than six hours in the day, he or she can voluntarily waive the meal period. Another exception is the “on-duty” meal period authorized by many of the Industrial Welfare Commission’s Wage Orders. This is a frequently misunderstood exception that, in practice, is construed so narrowly that it is of no practical benefit to most employers.
There are three requirements for a valid on-duty meal period. First, the nature of the work must prevent the employee from being relieved of all duty during the meal period. Second, the employee must voluntarily agree to the on-duty meal period, in writing and in advance. Third, the agreement must state that the employee can revoke the agreement at any time. While the latter two requirements are easily met, the first requirement is construed extremely strictly by the Division of Labor Standards Enforcement (“DLSE”). In 2002, the DLSE was asked by a restaurant owner whether an hourly Assistant Manager at its 24-hour restaurant could take an on-duty, paid meal period. The owner explained that the Assistant Manager worked the graveyard shift when the restaurant was only minimally staffed, and no other employee was qualified to take sole responsibility for the restaurant while the Assistant Manager was on an uninterrupted 30-minute break.
In its written response to the question, the DLSE took the position that exceptions to the general requirement for an off-duty meal period “must be narrowly construed.” The factors to be considered are the type of work, the availability of other employees to provide relief to an employee during a meal period, the potential consequences to the employer if the employee is relieved of all duty, the ability of the employer to anticipate and mitigate these consequences such as by scheduling the work in a manner that would allow the employee to take an off-duty meal break, and whether the work product or process will be destroyed or damaged by relieving the employee of all duty. The DLSE will find an on-duty meal break unlawful unless “these factors, taken as a whole, decisively point to the conclusion that the nature of the work makes it virtually impossible for the employer to provide the employee with an off-duty meal period.” Moreover, “the burden rests on the employer for establishing the facts that would justify an on-duty meal period.”
The DLSE concluded that an on-duty meal period for the sole management employee on duty was impermissible, because the employer could give one of the other employees additional training to enable him or her to cover while the Assistant Manager took an off-duty meal break. In essence, the employer was told to simply train another Assistant Manager and schedule them simultaneously so that they could provide each other breaks.
On the DLSE website, there are three examples of instances where an on-duty meal period will be permitted: “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.” The one factor that each of these has in common is that the employee is working completely alone. Thus, the DLSE will be unlikely to view any job with more than one employee present as qualifying for an on-duty meal period. Any employer who wishes to implement an on-duty meal period should consult legal counsel before doing so, as the multiple penalties that can be imposed for each improper meal break can be staggering.