Automobile Lemon Law

On Duty Meal Period

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While employers are generally prohibited from employing an employee for a work period of more than five (5) hours without providing a meal period of at least 30 minutes, (which must be provided no later than the end of the employee’s fifth hour of work), there are several exceptions to the meal period rules. 

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Under one such exception, an employee may enter into a written agreement with his employer for an on-duty meal period that is counted as time worked.  This is permissible only in certain limited circumstances and it must meet all the following conditions:

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1. The nature of the work prevents an employee from being relieved of all duty;

2. Must be agreed to in writing by you and the employee;

3. Must be paid; and

4. Can be revoked at any time in writing by the employee, except under Wage Order 14 (Agricultural Occupations).

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The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one.

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An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties.

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Must Be Provided with An Opportunity to Eat

 

In L’Chaim House, Inc. v. DLSE (2019) 38 Cal.App.5th 141, the California Court of Appeal held that even if all of the circumstances exist to allow an on-duty meal period, the employee must be provided with the opportunity to eat his or her meal while performing the duties required and any on-duty meal period must, like any off-duty meal period, be at least 30 minutes long.

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In conclusion, unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer’s premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay.  An “on duty” meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. 

 

If your employer is not providing you with a meal break, you are entitled to be paid one hour of pay at your regular rate of compensation for each workday that the meal period is not provided.  If your employer fails to pay the additional one hour’s pay, you are entitled to compensation.   Call us for a free consultation.

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