How is it Friday already, and summer is coming to a close quickly? Time for another Friday’s Five, and this week I cover five reminders about meal break waivers in California:
1. Meal break timing obligations.
An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day. Labor Code Section 512.
The California Supreme Court held in Brinker Restaurant Corp. v. Superior Court, that:
We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.
See my previous post on when employers must authorize employees to take meal breaks.
2. Employer’s duty to authorize meal breaks.
As long as employers effectively allow an employee to take a full 30-minute meal break, the employee can voluntarily choose not to take the break, and the employer would not owe the employee the additional hour of pay in the form of premium pay for a violation. The Supreme Court explained in Brinker:
The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.
While employees may voluntarily work through meal breaks, if the employer knows or should have known that the employee working during this time, the employer must ensure that the employee is paid for the time working.
3. Employees may waive meal breaks for shifts less than 6 hours or shifts less than 12 hours.
If the total work period per day for an employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. Likewise, if the if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512.
4. Meal break waivers for shifts less than six hours and less than 12 hours are not required to be in writing, but should be.
Labor Code section 512 does not require an employee’s waiver of their meal breaks for shifts less than six hours or shifts less than 12 hours to be in writing. However, in order to avoid any potential disputes and to be able to defend against any potential claims by disgruntled employees, it is always a good practice to have the voluntary waivers documented and signed by employees.
5. Don’t confuse “on-duty” meal agreements with meal period waivers.
On-duty meal period agreements are different than meal period waivers. The Wage Orders provide for an “on duty” meal period that is an exception to the required meal break if the following requirements are met:
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.
Wage Order No. 4-2001(a)(emphasis added). Unfortunately, the definition of the “nature of the work” is not clear, and has been construed very narrowly against employers. For example, the Department of Labor Standards Enforcement (“DLSE”) has issued an opinion letter addressing whether a shift manager in a fast food restaurant working the night shift would be allowed to take a “on duty” meal period. The DLSE concluded that based on the facts presented in the situation of the fast food restaurant, the nature of the work in the restaurant should not prevent the shift manager from being relieved of all duties for 30 minutes, and therefore the on-duty meal period would not be valid in this context. Click here to download the opinion letter.
Click here for more information about on-duty meal period agreements. Implementing an on-duty meal period agreement in California needs to be approached with caution, and should only be done with assistance from knowledgeable counsel.