Under California law, employees are required to take an off-duty 30-minute meal period before the end of the 5th hour of work. Employees who work less than 6 hours may waive the 30-minute meal period by mutual consent of the employee and employer. Employees who work more than 10 hours are required to take a second off-duty 30-minute meal period before the end of the 10th hour of work. Employees who work no more than 12 hours may waive the second 30-minute meal break by mutual consent of the employee and employer only if the first meal break was not waived.
During the meal period, employees are relieved of all duty and should be completely off work for at least 30 minutes.
The Wage Orders recognize an exception to this rule where the “nature of the work” performed by the employee prevents him/her from being relieved of all duty. The test for on-duty meal periods is satisfied so long as:
- The employee voluntarily signs a one-time written agreement to work an on-duty meal period. The written agreement must state that the employee will be paid for his/her on-duty meal period. In addition, the written agreement must state that the agreement may be revoked by the employee at any time.
- The employee voluntarily verifies in writing that he/she agrees that the nature of the work prevented him/her from taking an off-duty meal period on the particular day.
- The employer verifies in writing that there were jobs in progress which prevented the employee from being relieved of all duty in order to take a 30 minute off-duty meal period.
An on-duty meal period may only be taken when the “nature of the work” prevents the employee from being relieved of all duty for at least 30 minutes based on the necessary job duties. This determination must be made on a case-by case basis.
Department of Labor Standards Enforcement (DLSE) opinion letters suggest that “nature of the work” depends on:
- 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;
- 5) whether the work product or process will be destroyed or damaged by relieving the employee of all duty.
If there is an opportunity to take an off-duty break, the “nature of the work” exception won’t apply. An on-duty meal period should be used only in limited situations when an off-duty meal period simply cannot be provided when taking all of the above factors into consideration.
It is also important to keep in mind that an on-duty meal break is an alternative and not a waiver of the meal period.
Vickie Grasu (Bio | LinkedIn) is a partner based in our Los Angeles office and a member of the firm’s Labor and Employment Team. Vickie enjoys reading philosophy and going to the beach. An ideal day – combining the two!