This month’s expert is
Allen Kato, an employment lawyer in the
office of the law firm Fenwick &
The California Division
of Labor Standards Enforcement (DLSE) places the burden on employers to ensure that
employees take an off-duty meal period of at least 30 minutes after five hours
of work. Indeed, the DLSE takes the position that employers must compel
employees to cease work during the meal period, and it is not an excuse that
the employee failed to take the off-duty meal period.
However, with certain
exceptions, the California Labor Code permits employers and employees to agree to
an “on-duty” meal period, as this article will explain.
I N FUTURE ISSUES
On-Duty Meal Periods
An “on-duty” meal period
is allowed only: 1) when the nature of the work prevents an employee from being
relieved of all duty; and 2) by written agreement. The agreement must state
that the employee may, in writing, revoke the agreement at any time.
If the employee
voluntarily agrees in writing to waive the off-duty meal period, the law
requires the employer to pay the regular rate and any overtime wage for the
on-duty meal period; a valid written agreement should relieve the employer of
also having to pay the one hour of premium pay, which is required when an
employee isn’t provided with an off-duty meal period. However, when does the
nature of the work prevent an employee from being relieved of all duty?
According to the DLSE, the employer and employee may not agree to an on-duty
meal period unless the employee is prevented from being relieved of all duty
“based on the necessary job duties.”
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Key Factors
Addressing the “all
duty” issue, the DLSE has determined that a particular employer in the fast
food industry could not enter into a valid on-duty meal period agreement with a
nonexempt shift manager who was in charge of the restaurant late at night. The
employer urged that the shift manager had to be available at all times to
answer other employees’ questions or to solve problems. In determining whether
the nature of the work prevents an employee from being relieved of all duty,
the DLSE explained that it applies a multifactor objective test. The factors
include:
• the type of work
• the availability of
other employees to provide relief
• the potential consequences
to the employer if the employee is relieved of all duty
• the employer’s ability
to anticipate and mitigate these consequences, such as by adjusting schedules
• whether the work
product or process will be destroyed or damaged by relieving the employee of all
duty
These factors must
“decisively point to the conclusion” that the nature of the work makes it
“virtually impossible” for the employer to provide an off-duty meal period. The
DLSE opined that there was nothing so inherently complex about running a fast
food outlet that would make the shift manager’s presence “utterly indispensable.”
The DLSE suggested that other employees could be trained to answer or resolve
problems. Further, there was nothing to suggest that food would be destroyed or
damaged because the employee took a meal break. Accordingly, because the DLSE
imposes such strict limits on the use of on-duty meal period agreements,
employers should be prepared to establish that there is a business necessity.
Forcing an On-Duty Meal
Period
What should an employer
do when an employee refuses to sign a written on-duty meal period agreement? The
employer may require the employee to work an on-duty meal period by paying him
or her the regular rate and any resulting overtime, plus the one hour of
premium pay at the employee’s regular rate for the on-duty meal period. The
employer must allow the employee to eat his or her meal while working.
Conclusion
To sum up, an employer
may enter into a written agreement for an on-duty meal period, but this can only
be done if the nature of the work prevents the employee from being relieved of
all duty. However, the company must pay regular and any overtime wage for the
on-duty meal period. In the alternative, an employer may require an employee to
work through a meal period by paying regular and any overtime wage, plus
premium pay equivalent to one hour of pay.