Originally Published on August 8, 2018; Updated/Revised on July 23, 2019
In general, if you are a non-exempt employee and you work more than five hours and up to ten hours during a day, your employer must provide you with one unpaid, off-duty meal period that is 30 minutes long. “Off-duty” means that during your meal period, you must be relieved of all duty and be free to attend to your personal business. If your employer fails to provide you with an unpaid, off-duty meal period that is 30 minutes long, your employer must pay you one additional hour of pay at your regular rate of pay for each day that you are not provided a required meal period.
Notwithstanding the above requirements, there may be times when your employer is not able to relieve you of all duties during your meal period due to the nature of your employer’s business. In such instance, your employer may provide you with an on-duty meal period (in lieu of an off-duty meal period) – but only if your employer satisfies certain requirements under California law. The requirements are set forth below:
1. In contrast to an off-duty meal period (which is unpaid), an on-duty meal period must be paid at your regular rate of pay.
2. You and your employer must enter into a written agreement, memorializing your agreement to an on-duty meal period.
3. The written agreement must state that the agreement is revocable by you at any time.
4. The nature of the work must prevent you from being relieved of all duty during your meal period. In turn, in determining whether or not the nature of the work prevents you from being relieved of all duty, the following factors should be considered: (a) the type of work; (b) the availability of other employees to provide you relief during a meal period; (c) the potential consequences to your employer if you are relieved of all duty during your meal period; (d) your employer’s ability to anticipate and mitigate these consequences; and (e) whether the work product or process will be destroyed or damaged by relieving you of all duty.
In sum, these five factors, taken as a whole, must point to the conclusion that the nature of the work makes it virtually impossible for your employer to provide you with an off-duty meal period.
According to the California Department of Labor Standards Enforcement, the nature of the work prevents employees from being relieved of all duty for the following jobs: a sole worker in a coffee kiosk; a sole worker in an all-night convenience store; and a security guard who is working alone at a remote site. This is not an exhaustive list, however.
In conclusion, on-duty meal periods are permitted under California law only if an employer satisfies the above requirements. When an employee brings a claim against an employer, alleging that the employer’s on-duty meal period policy is unlawful, courts will evaluate whether the employer has satisfied the above requirements, including whether the nature of the work truly prevents the employer from relieving an employee of all duty during meal periods.
Click here for general information about your right to meal periods under California law.
If you believe that your employer is not complying with California’s laws relating to on-duty meal periods, call 916-612-0326 or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Folsom, Roseville, Granite Bay, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.