Exceptions to meal period requirements in California

In California, meal periods for employees must be at least 30 minutes by law, and the employee must be fully relieved of all work during that meal period. The meal period may be unpaid, and it has to be taken within the first 5 hours of the shift. These requirements apply for any workday in excess of 5 hours. Most California employers are aware of this rule, but what are the exceptions?

What should employers do if they cannot meet the requirement for some employees? For example, what about an employee, such as a security guard or convenience store clerk, who isn’t really fully off duty during his break? Is this illegal? Must premium pay penalties be paid by the employer?

Exceptions to meal period requirements in California

While the meal period requirements are set by law, there are also two main exceptions: voluntary waivers and on-duty meal periods.

Voluntary meal period waivers

“One exception to the obligation to afford an employee a meal period is where an employee voluntarily agrees to waive the meal period if the employee’s shift is not more than 6 hours.” Allen M. Kato explained in a recent CER webinar. This waiver must be mutual; in other words, both parties must agree to it in advance.

A meal period waiver can also be used for shifts exceeding 10 hours, but less than 12 hours. In these cases, the employee would normally be entitled to a second meal period, but if the employee works 12 hours or less, and has taken first meal period, then the second meal period may be waived.

While not required by law, it is best practice to have the employee sign a written waiver that confirms that he or she voluntarily agreed to waive the meal period. This will serve as proof of the agreement.

On-duty meal periods

As already outlined, employees must be relieved of all duty during their meal period. What some employers do not realize, however, is: “It is not unlawful to require employees to work through their meal period, so long as you are paying for it . . . [paying] the additional time worked through the otherwise unpaid meal period, any resulting overtime, and the premium pay penalty.” Kato advised. (The premium pay penalty is one hour of regular wages for each day in which there is a violation).

“You can avoid having to pay the premium pay penalty by having the employee voluntarily sign an ‘on-duty meal period agreement.'” Kato told us. This is different from a waiver because the meal period is not actually being waived. Here are the requirements for this to occur:

• The nature of work must prevent relieving the employee of all duty during the meal period. This is a strict requirement.
• There must be a written agreement, signed by the employee.
• It must state that the employee may revoke it at any time.

With an on-duty meal period agreement, the employee must be paid for time worked, including overtime, but the employee need not be paid premium pay as penalty. The employee must be allowed to eat while working during this time.

If these requirements are not satisfied for a valid on-duty meal period agreement, the employer may still require an employee to work through the meal period—but must pay the premium pay penalty in addition to time worked and overtime.

The above information is excerpted from the webinar “Meal Periods and Rest Breaks in California: What You Must Do to Comply Post-Brinker.” To register for a future webinar, visit CER webinars.

Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.