Meal period rules are currently a hot topic in
the law and the Legislature ponders bills to clarify the requirements. Here, we’ll
tell you how a federal court in
Francisco
ruling regarding on-duty meal periods.
Security Guards Work On-Duty Meal Breaks
Johnny McFarland was a security guard for the international security
firm Guardsmark LLC, which has
in
McFarland and other guards agreed to on-duty meal periods when working at client
sites. When they put in more than 10 hours in a day, both the first and second
meal periods were on duty.
McFarland filed a class action suit against Guardsmark for back
wages stemming from missed meal breaks, plus the extra hour’s pay that California
Labor Code Section 226.7 requires employers to pay for each missed meal period.
The lawsuit contended that an employee’s agreement to an on-duty meal period is
equivalent to waiving that meal period. Thus, when the guards worked two
on-duty meal periods in a day, they were waiving both meal breaks. The suit
charged that this violated
law, which allows an employee to waive a second meal period only if the first
has not been waived.
Guardsmark took the position that an on-duty meal period is not
the same as a waived meal period. Rather, the employer argued, an on-duty meal
is a type of meal that can satisfy the employer’s obligation; in contrast, a
waived meal eliminates the employee’s entitlement to any type of meal period.
Thus, Guardsmark asserted, on-duty meal periods aren’t subject to the same
one-per-day limit as waived meal periods are.
What Is the Law?
Under California Labor Code Section 512, an employer may not
employ an employee for a work period of more than five hours per day without providing
a meal period of at least 30 minutes during which the employee is relieved of
all work. An employee who won’t work more than six hours can waive this meal
period. A second 30-minute meal period is required for an employee who works
more than 10 hours, but that second meal period can be waived if the employee
will work no more than 12 hours and hasn’t waived the first meal period.
In addition, the Industrial Welfare Commission Wage Orders permit
on-duty meal periods—but only in very limited circumstances. The nature of the
work must prevent the employee from being relieved of all duty, and the
employee must agree in writing to the on-duty meal period. For such on-duty
meals, the employer must pay the regular pay rate for the time worked, plus any
overtime that might be due.
No Waiver
The
federal court dismissed the lawsuit, disagreeing with McFarland that an on-duty
meal period is a waived meal period.1 The court explained that the language of the Labor Code and Wage
Orders makes it clear that an on-duty meal period is a
meal period. Thus, an employee who takes an on-duty meal period gets his or her
meal period as required by law, and the meal period is not waived. In other
words, an employee who takes an on-duty meal period doesn’t give up his or her right to eat during
the shift—the Individual simply agrees to be paid for the time he or she is
allowed to eat and to be available to respond to work issues that might arise.
The court concluded, therefore, that the rule allowing an employee
to waive just one meal period per day does not similarly limit employees to
taking just one on-duty meal period per day.
Practical Impact
Although Guardsmark prevailed in this case,
court’s decision isn’t the last word on whether agreeing to an on-duty meal
period is the same as waiving a meal period. The California Division of Labor
Standards Enforcement takes a contrary position, stating in its enforcement manual
that an employee may not take two on-duty meal periods in a day. What’s more,
court’s interpretation of
law, so a state court faced with the same questions as this case posed could
rule differently. Therefore, employers should consider consulting an attorney
before permitting employees to work two on duty meal periods in a workday.
For more about on-duty meal periods, see CWHA November
2007.
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1 McFarland v. Guardsmark