Question:

My small business only employs one individual, who is responsible for many different things. Because our doors are always open to customers, it is impossible for our employee to take a traditional off-duty meal period. Could you please explain when on-duty meal periods are allowable under California law?

Answer:

Section 512 of the California Labor Code provides the general rule that an employer may not employ an individual for a work period of more than five hours per day without providing the employee with an off duty meal period of not less than 30 minutes. In order to be considered a traditional meal period, the employee must be relieved of all duty. However, exceptions to that general rule exist.
One exception is that an on-duty meal period may be provided in limited situations. Pursuant to California regulations and the Industrial Welfare Commission Wage Orders, an on-duty meal period is allowable only when the nature of the work prevents an employee from being relieved of all duty. According to the Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, the determination of whether the nature of the work prevents the employee from taking a traditional meal period is to be based on objective criteria.

In order to prove that the nature of an employee’s work prevents an employee from being relieved of all duty, the employer must satisfy a multi-factor objective test. The factors to be considered are: (1) the type of work; (2) the availability of other employees to provide relief to an employee during a meal period; (3) the potential consequences to the employer if the employee is relieved of all duty; (4) 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 period; and (5) whether the work product or process will be damaged or destroyed by relieving the employee of all duty. In addition, other relevant factors may be considered, such as industry specific laws and regulations. In the end, the critical determination of whether an on-duty meal period may be lawfully provided by an employer is whether the facts and circumstances point to the conclusion that the nature of the work prevents the employee from being relieved of all duty. If an employer cannot do so, an on-duty meal period will violate the law.

The DLSE website provides examples of jobs where on-duty meal periods meet this standard, including 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 DLSE has stated that on-duty meal periods were not appropriate for a fast food shift manager when other employees were present.

In addition, the law requires that the employee and employer enter into a written agreement regarding the on-duty meal periods. The written agreement must state that the employee may, in writing, revoke the agreement at any time. Further, the employee must be provided with the opportunity to eat a meal while performing the required job duties, and that opportunity must be provided within the first five hours of the employee’s shift. Lastly, an on-duty meal period must be counted as time worked, and an employee must be paid during such meal periods. If all of the standards set forth above are not satisfied, the employer may face monetary penalties.
The penalty for violating the meal period statute is one hour of pay for every day that the employee was not given an off-duty meal period. Under the applicable case law, the burden rests with the employer to establish the facts that would justify an on-duty meal period. In addition, an employer who violates the statute may be liable for waiting time penalties.

In conclusion, the on-duty exception to the traditional off-duty meal period requirement is narrowly construed on a case-by-case basis. If you wish to provide your employee with an on-duty meal period, a properly drafted written agreement must be in place. Moreover, you should be sure that the nature of the employee’s work prevents the employee from being relieved of all duty. For assistance in interpreting this standard and the corresponding factors, contact your local employment law attorney.
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