On-duty meal periods
STATE OF CALIFORNIA GRAY DAVIS, Governor
DEPARTMENT IF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
455 Golden Gate Avenue, 9th Floor,
San Francisco, CA 94102
(415) 703-4863
MILES E. LOCKYER, Attorney for the Labor Commissioner
September 4, 2002
Robert T. Cherry, Managing Director
Valley Employers Association
1300 East Shaw Avenue, Suite 125
Fresno, CA 93710-7903
Re: On-Duty Meal Periods
Dear Mr. Cherry:
This in response to your letter to the State Labor Commissioner,
Arthur Lujan, dated April 4, 2002, in which you presented the following
question, seeking clarification of the requirements for a permissible "on-
duty meal period":
"The problem arises in the fast food industry where during many of the
late night shifts the only person in charge of the restaurant is an hourly
paid Shift Manager. Because this person must be available at all times to
answer questions or solve problems it is not always possible for the
employee to get an uninterrupted meal period of one-half hour. The
employees do get to eat and are paid for all time including the time they
are eating their meal. Under these circumstances, and with the agreement
of the employee, can then employer have an On-Duty Meal Period arrangement
with the employee?"
Industrial Welfare Commission ("IWC") Order 5-2001, which governs
wages, hours and working conditions in the restaurant and fast food
industry, mirrors Labor Code §512 in providing: "No employer shall employ
any person for a work period of more than five hours without a meal period
of not less than 30 minutes, except that when a work period of not more
than six hours will complete the day's work the meal period may be waived
by mutual consent of the employer and the employee." Subdivision 11(A) of
IWC Order 5-2001 further provides: "Unless the employee is relieved of all
duty during a 30 minute meal period, the meal period shall be considered an
'on-duty' meal period and counted as time worked. 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."
Thus, as a general rule the required meal period must be an off-duty
meal period, during which time the employee: 1) is not required to work,
2) is not suffered or permitted to work, 3) is not subject to the control of
the employer so as to be free to leave the employer's premises and attend
to his/her own personal affairs, 4) for a minimum of thirty minutes. If
any of these conditions are not present, the time, if any, during which the
employee is permitted to eat his or her meal is considered on-duty time,
which is treated as "hours worked" for which the employee must be paid at
his or her regular rate of pay.
There are two types of on-duty meal periods: those that are permitted
under the wage orders, and those that are not. In order for an on-duty
meal period to be permitted under the wage orders, all three of the
following requirements must be met:
1) the nature of the work must prevent the employee from being relieved of
all duty during the meal period, 2) the employee and employer must have
previously entered into a signed agreement authorizing an on-duty meal
period, and 3) the signed agreement must expressly state that the employee
may, in writing, revoke the agreement at any time. (If employees are
represented by a collective bargaining representative, that representative
is empowered to enter into or revoke such agreement on behalf of the
represented employees. See Porter v. Quillin (1981) 123 Cal.App.3d 869.)
In determining whether "the nature of the work" prevents an employee
from being relieved of all duty, the Division of Labor Standards
Enforcement starts with the premise that the general requirement for an
off-duty meal period is remedial in nature, and any exceptions to that
general requirement must be narrowly construed, so as to avoid frustrating
the remedial purpose of the regulation. The Division has always followed
an enforcement policy that this determination must be made on the basis of
a multi-factor objective test. The factors that should be considered
include the type of work, the availability of other employees to provide
relief to an employee during a meal period, the potential consequences to
the employer if the employee is relieved of all duty, 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 break, and whether the work product or process will be
destroyed or damaged by relieving the employee of all duty. The Division
will conclude that an off-duty meal period must be provided unless these
factors, taken as a whole, decisively point to the conclusion that the
nature of the work makes it virtually impossible for the employer to
provide the employee with an off-duty meal period. Finally, the burden
rests on the employer for establishing the facts that would justify an on-
duty meal period.
Applying this multi-factor test to the facts that you have provided,
we note that despite your assertion that the hourly paid shift manager
"must be available at all times to answer questions or solve problems," we
cannot fathom why the other employees of the restaurant could not function
in the absence of the shift manager for thirty minutes, so as to allow the
shift manager to take an off-duty meal period. There is nothing that would
appear so inherently complex about the running of a fast food outlet that
would make the shift manager's presence utterly indispensable so as to
preclude this manager from getting his or her well deserved, and legally
required, off-duty meal break. You have failed to present any facts that
would establish why no other employee could be trained to answer or resolve
the "questions" or "problems" that may arise, or why any "questions" or
"problems" that could only be answered or resolved by the shift manager
could not wait for his or her return from an off-duty meal break. Finally,
you do not suggest that the fast food being prepared and served would be
destroyed or damaged as a result of relieving the shift manager of all duty
for the length of his or her meal period. As such, we would conclude that
the failure to provide this employee with an off-duty meal period violates
the meal period requirements of IWC Order 5-2001, and that an on-duty meal
period is not permitted.
Subdivision 11(B) of Order 5-2001 states: "If an employer fails to
provide an employee a meal period in accordance with the applicable
provisions of this order, the employer shall pay the employee one (1) hour
of pay at the employee's regular rate of compensation for each workday that
the meal period is not provided." This extra hour of compensation is
required for each day that an employee who is entitled to an off-duty meal
period is employed without the required off-duty meal period.
Thank you for your interest in California wage and hour law. Please
do not hesitate to contact us with any further questions.
Sincerely,
Miles E. Locker
Attorney for the Labor Commissioner
cc: Chuck Cake, DIR Director
Arthur Lujan, Labor Commissioner
Anne Stevason, Chief Counsel
Tom Grogan, Chief Deputy
Greg Rupp, Assistant Chief
Nance Steffen, Assistant Chief
Bridget Bane, IWC Executive Officer