Question:

I work the night shift at a 24-hour gas station. There are long periods of time where there are no customers and I am able to do my homework or anything else that I like. I have plenty of time for meals and breaks, but unfortunately due to the nature of the business, I am unable to leave during my meal break to take a walk. I was recently told by one of my co-workers that it is not really a meal break if you are not able to leave the premises and that I am entitled to additional compensation. Is this true?

Answer:

Meal period requirements are set out in the various wage orders of the Industrial Welfare Commission (IWC). Gasoline stations are covered by IWC Wage Order 7 and the meal period requirements are set out in section 11 of that Order. Section 11 provides that if an employer fails to provide an employee entitled to a meal period with either (1) a timely off-duty meal period of not less than 30 minutes duration, or (2) an on-duty meal that meets the requirements for a lawful on-duty meal period, the employer must pay the employee an additional one hour of pay at the employee’s regular rate of pay for each day in which the employee was not provided with this lawful, required meal period. An employer must pay an employee at his or her regular rate of pay for an on-duty meal period, as the entire on-duty meal period constitutes “hours worked.”

For purposes of this response, we will assume that you work sufficient hours each shift to be entitled to a meal period. As you can see, there are two types of meal periods, “off-duty” and “on-duty” meal periods. With the exception of employees in the health care industry, employees must be free of employer control so as to leave the employment premises during an off-duty meal period. Since you are unable to leave the premises during your meal period, your employer is not providing you an off-duty meal period. The scenario you describe is arguably an “on-duty” meal period. An “on-duty” meal period is permitted under the wage orders if each of the following three factors are present: (1) the “nature of the work” prevents the employee from being relieved of all duty during the meal period, (2) the employee and employer entered into a signed written agreement authorizing the on-duty meal period prior to the dates in question, and (3) this written agreement explicitly states that the employee may revoke the agreement in writing at any time.

It appears that the situation at the gas station where you work satisfies the first of these factors. You do not say whether you have entered into a written agreement with your employer regarding your meal period. If you have, at a minimum, your employer must pay you for the on duty meal period. If you have not entered into such a written agreement, then your employer should pay you the one hour penalty referenced above for each workday that an off-duty meal period is not provided.
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