The California Supreme Court is currently considering the scope of employer meal break obligations under state law. The question before the court is whether employers must only “provide” a meal break, or “ensure” that employees take meal breaks. There’s no indication of when the court will be making its ruling.
In the meantime, many employers and employees alike are wondering: can employees choose to work through a meal break (either to get work done or to leave work early)?
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law,
explains everything you need to know to stay in compliance with the
state’s complex and ever-changing rules, laws, and regulations in this
area. Coverage on bonuses, meal and rest breaks, overtime, alternative
workweeks, final paychecks, and more.
Until the Supreme Court says otherwise, employers are wise to assume that nonexempt employees can work through a meal period only under one of two very limited circumstances:
- Meal Break Waiver. A non-exempt employee who works a total of six hours or less in a day can waive taking a meal break. An employee who works more than 10 hours in a day but less than 12 hours can waive the second meal period. Waiver can be verbal or written. Health care employees can waive a meal break if they work more than eight hours in a day and sign a revocable written waiver.
- On-Duty Meal Periods. If the nature of an employee’s work prevents the employee from being relieved of all duties for an uninterrupted 30-minute meal period, the employee can agree to work an on-duty meal period without being owed missed meal period premium pay. However, the time the employee works during an on-duty meal period is counted as hours worked for the purposes of calculating overtime.
Although state law doesn’t define specifically what constitutes a business that is of a nature that would prohibit the employee from being relieved of all duties, the Division of Labor Standards Enforcement policy is that on-duty meal periods are available only when it is “virtually impossible” to relieve the employee of work duties. An example would an employee working alone overnight in a convenience store, or a lone security guard.
For an on-duty meal period agreement to be valid, it must:
- be in writing
- be voluntarily signed by the employee before working any on-duty meal periods; and
- must state that the employee can revoke the agreement at any time. Improper on-duty meal period agreements will result in owing employees backpay and civil penalties.