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What is an on duty meal period and can I be forced to take my meal period while I'm on-duty under California wage law?

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California meal period law

California wage law - including the right to take meal breaks and rest breaks comes from two places - the California Labor Code and the California Wage Orders. Under most circumstances California law states that you have to be relieved of all duty during a 30 minute meal period.  In this article, I explain your rights to meal periods under California law and your entitlement to an hour's wage if you don't get a legally compliant meal break. 
 

What is an on-duty meal period agreement under California wage law? 

Most of the California Wage Orders allow what the law calls “on-duty” meal periods, under limited circumstances. In its simplest form, an on-duty meal period is a meal period that you take while you're still "on-duty."  And you have to be paid for this time.  However, the law has strict requirements that the company must follow in order for on-duty meal periods to be legal. I cover all of this in this article. 
 
In this article, I explain California law regarding on-duty meal breaks and the duties your employer has to provide meal breaks. And how you’re owed an hour’s pay for every meal period and/or on-duty meal period that isn’t provided to you under California law. As I explain, just because you took a meal period, doesn’t mean that it complies with California law on meal periods.
 
On-duty meal periods California
 
Getting your unpaid wages check!!!

In this article, I answer these questions and/or address the following issues regarding on-duty meal periods:

What is an on-duty meal period?

What are the requirements for on-duty meal periods under California law?

Can I get an hour’s pay if the on-duty meal period requirements are not met?

In order for an on-duty meal period to be compliant with California law - the meal period must be for 30 minutes in length

What if I’m not allowed to actually sit down and eat during my “on-duty” meal period?

What if I have to rush to eat my meal while I'm on duty?

Can I make the company provide workers with a legally compliant on-duty meal period?

Can I be forced to take my meal period while on-duty? ... Can the company make me take my meal break while I’m working - on-duty?

What can I do if the company doesn't follow the law for on-duty meal periods?

What is the actual language in the Wage Orders regarding on-duty meal periods?

Which Wage Orders allow on-duty meal periods?

There must be a written agreement that the on-duty meal period can be revoked at any time

Are there different rules for on-duty meal periods for workers that work at some 24 hour residential care facilities?

Must the on-duty meal break agreement be in writing?

Can the employer’s client decide that they want meal periods to be on duty?  (As opposed to the nature of the work being deciding the issue?) ....

What if the nature of the work doesn’t require an on-duty meal period and the company makes me take on-duty meal periods?

A quick example of a case where the employer argued that the nature of the work required an on-duty meal period, but the employer was still liable for paying an hour’s pay for every meal period

A quick example of a case where the nature of the work didn’t require an on-duty meal period

Do on-duty meal periods have to be recorded?

 

Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?

On-duty meal period law in California - Bill Turley
A No B.S. straight-shooter lawyer

 
Believe it or not, Bill Turley is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.

What is an on-duty meal period?

Under California law, if you’re not provided a legally compliant meal period - meaning if the employer hasn’t met their duties - then the meal period is considered “on-duty.” Either way, you have to be paid for this time. That is, the meal period is counted as time worked. Wage Order 9, Section 11(A).
 
Thus, an on-duty meal period is a meal period, where you’re allowed 30 minutes to eat and while you still may have limited duties.
 
 

What are the requirements for on-duty meal periods under California law?

The requirements for a meal period to be considered “on-duty”
 
 1.  The  nature of the work prevents an employee from being relieved of all duty.
 2.  There must be a written agreement between the parties if an on-the-job paid meal period is agreed to.
 3.  The written agreement shall state that the employee may, in writing, revoke the agreement at any time.
 4.  The meal period must be 30 minutes in length.
 5.  The meal period must be recorded.
 6.  You must be paid for the 30 minutes that you are taking a meal period.
 7.  You must be provided the opportunity to eat a nutritious meal without being rushed over the course of a half-hour. 
 8.  Your 30 minute meal period must not be rushed or you must not be pressured to eat quickly. You get 30 minutes to eat - even when you're on-duty. 
 Wage Order 9, Section 11(A); L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 153-154 (2019).
 

Can I get an hour’s pay if the on-duty meal period requirements are not met?

Yes. Unless the employer meets the strict requirements for an on duty meal period - then you’re also owed an hour’s pay.
 

In order for an on-duty meal period to be compliant with California law - the meal period must be for 30 minutes in length   

You’re entitled to a 30-minute meal period even though that meal period may be on duty instead of off duty. L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 147 (2019).
 
If you aren’t provided a 30 minute on-duty meal period, then you must be paid an hour’s pay. L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 147 (2019); California Labor Code Section 226.7.
 

What if I’m not allowed to actually sit down and eat during my “on-duty” meal period?

You have to be provided the opportunity to eat your meal without being rushed - or you’re owed an hour’s pay. L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 153-154 (2019).
 

What if I have to rush to eat my meal while I'm on duty?

This also is a violation of California law. If you are rushed or are pressured to eat quickly, then this is a violation and you're owed an hour's pay. 
 
Under California law, your meal period can be “on-duty.” As long as all of the aforementioned requirements are met.  And the law may allow you to have to perform some duties during your meal period. However, as the court in L’Chaim House observed:
 
If these sorts of duties do not unduly impinge on the opportunity of employees to eat a nutritious meal without being rushed over the course of a half-hour, it certainly seems the employees will have been afforded adequate lawful “on-duty” meal periods. On the other hand, if employees feel pressured to eat meals as quickly as possible and to jump up as soon as they swallow their final bite and turn their full attention to whatever work awaits them, then it would seem the employees have not been afforded adequate “on-duty” meal periods. (See Brinker, supra, 53 Cal.4th at p. 1040 [employer may not, by pressuring employees, “undermine” formal policy of adequate breaks].)
L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 153-154 (2019).
 
 
 

Can I make the company provide workers with a legally compliant on-duty meal period?

If you’re not actually allowed to sit down and eat during your on-duty meal period, then you’re owed an hour’s pay. And you can file a lawsuit in order to make your employer provide workers with an actual legally compliant on-duty meal period.


Can I be forced to take my meal period while on-duty? ... Can the company make me take my meal break while I’m working - on-duty?

Yes. It seems that your employer can require you to take on-duty meal periods, as long as all of the requirements for on-duty meal periods are met. The first step is to start with the Wage Order for the industry that you work in. Most industries in California have Wage Orders that are similar to the language in Wage Order 9. 
 
Assuming that all of these requirements are met - including that “the nature of the work prevents an employee from being relieved of all duty,” than your employer can, in essence say, if you don’t agree to take an on-duty meal period, then you can’t work this job. However, all of these requirements (see above) must be strictly followed.
 
Otherwise, you’re entitled to an hour’s pay for every time that you’re forced to take an “on-duty” meal period.
 

What can I do if the company doesn't follow the law for on-duty meal periods? 

 
As a practical matter, if your employer says, “tough luck” - I’m not following the law, then you have a choice to make. Bring a strong claim for the violation of California law or continue to work under these illegal working conditions and not getting paid the wages that you’re owed.
 
Or another alternative is to contact an employee that has left the company and see if they are willing to file a claim for unpaid wages or wait until you stop working there, in order to bring a wage claim.
 
Some folks want to go forward with a wage claim, even when they are working for the company. Under these circumstances the law does protect you from discrimination for bringing a wage claim, I usually tell people to think this through before doing so.
 

What is the actual language in the Wage Orders regarding on-duty meal periods?


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.
Wage Order 9 Section 11

Which Wage Orders allow on-duty meal periods?

 
The following California Wage Orders have the identical language regarding on-duty meal periods:
 
 Wage Order 1 - Manufacturing Industry
 Wage Order 2 - Personal Services Industry
 Wage Order 3 - Canning, Freezing, and Preserving Industry
 Wage Order 4 - Professional, Technical, Clerical, Mechanical and Similar Occupations
 Wage Order 5 * - Public Housekeeping Industry
 Wage Order 6 - Laundry, Linen Supply, Dry Cleaning and Dyeing Industry
 Wage Order 7 - Mercantile Industry
 Wage Order 8 - Industries Handling Products After Harvest
 Wage Order 9 - Transportation Industry
 Wage Order 10 - Amusement and Recreation Industry
 Wage Order 11 - Broadcasting Industry
 Wage Order 12 - Motion Picture Industry
 Wage Order 13 - Industries Preparing Agricultural Products for Market, on the Farm
 Wage Order 14 - Agricultural Occupations
 Wage Order 15 - Household Occupation

* Please note that Wage Order 5 has this language and additional requirements for employees of 24 hour care residential facilities. I discuss these additional requirements later in this article. 


There must be a written agreement that the on-duty meal period can be revoked at any time

The written agreement must include a provision allowing the employee to revoke it at any time. Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926, 932 (2016); Wage Order 9, Section 11
 

Are there different rules for on-duty meal periods for workers that work at some 24 hour residential care facilities?

Yes. Employees that work in 24 hour residential care facilities fall under Wage Order 5. 
 
Wage Order 5 states, in part:
 
Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24 hour residential care, and employees of 24 hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met:
    (1)
  (a)  The residential care employees eats with residents during residents' meals and the employer provides the same meal at no charge to the employee; or
  (b)  The employee is in sole charge of the resident(s) and , on the day shift, the employer provides a meal at no charge to the employee.  

 
Wage Order 5, Section 11(E).
 
Employers with these 24 hour care facilities can lawfully require its employees to agree to work on-duty meal periods without allowing revocation of the agreement because on-duty meal periods for employees of such facilities are authorized under specified circumstances (Cal. Code Regs., tit. 8, § 11050, subd. 11(E)) and the employer was not obligated to comply with a general provision addressing notice to employees about revoking agreements for on-duty meal periods (§ 11050, subd. 11(A)), which cannot be reconciled with the more specific subdivision.  Wage Order 5 11(E) and 11(A); Palacio v. Jan & Gail's Care Homes, Inc., 242 Cal. App. 4th 1133, 1140 (2015).
 

Must the on-duty meal break agreement be in writing?

Yes. Under the Wage Orders, the parties agree in writing to an on-duty paid meal break. The written agreement must include a provision allowing the employee to revoke it at any time. Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926, 932 (2016).
 

Can the employer’s client decide that they want meal periods to be on duty?  (As opposed to the nature of the work being deciding the issue?) ....

This was addressed in the Wackenhut case:
 
Here, plaintiffs' theory at class certification was based on a common contention: that Wackenhut violated California labor laws by failing to provide employees with off-duty meal periods. This violation resulted from Wackenhut's policy of requiring all employees to sign on-duty meal agreements and allowing client preference to dictate whether an employee had an off-duty or on-duty meal period, rather than itself determining, as the employer, whether the nature of the work  at each site prevented its employees from having an off-duty meal period. Whether plaintiffs' theory has merit is a common question that is “capable of classwide resolution.” Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926, 941 (2016).


What if the nature of the work doesn’t require an on-duty meal period and the company makes me take on-duty meal periods?

This is illegal under California law; under these circumstances, you and the other employees are entitled to an hour’s pay for every on-duty meal period.
 

A quick example of a case where the employer argued that the nature of the work required an on-duty meal period, but the employer was still liable for paying an hour’s pay for every meal period

In one recent case, an armored car company took the position that it’s guards must always be on-duty during the work day. In essence, the company was stating that they couldn’t provide armored guards with ½ hour meal periods. We countered, that while this may be true in rural areas, it was hard to think that in urban areas that the company couldn’t have provided other guards that could have filled in for guards taking meal breaks.
 
However, either way, the company was not providing the employees the ½ hour to stop and take a 30 minute meal break. Instead, the guards were being told to switch off driving and eat between stops.  Which isn’t an opportunity to eat for 30 minutes, under most circumstances. Which, is a violation. Meaning the guards are entitled to an hour’s pay for every illegal on-duty meal period.
 

A quick example of a case where the nature of the work didn’t require an on-duty meal period

In another case, the employer was making factory workers in one department take on-duty meal periods. In essence, the workers were considered “indispensable” and thus, they had to take their meal periods at their work stations.
 
A company’s reluctance to hire and train other workers in a factory to perform certain tasks does not qualify for the “nature of the work” requirement for on-duty meal periods. In this case, the factory company owed these employees an hour’s pay for every illegal on-duty meal period.
 

Do on-duty meal periods have to be recorded?

All of the wage orders that provide for on-duty meal periods, also have Section 7(A) which requires meal periods to be recorded. Wage Order 9, Section 7(A). 

The court in the L'Chaim House case held that on-duty meal periods must be for 30 minutes in length.  L'Chaim House, Inc. v. Department of Industrial Relations, 38 Cal. App. 5th 141, 153-154 (2019). The question arises, how is the employer going to be able to prove that they met their duty to provide 30 minute meal periods - even when they are 30 minute on-duty meal periods, unless meal periods are recorded?

Thus, based upon Section 7(A), it sure seems that on-duty meal periods must be recorded.  That is the employer has an affirmative duty to record on-duty meal periods. That is the beginning and ending time of the meal periods. 
 
It is noteworthy to observe that Section 7(A) states that rest periods do not have to be recorded.  Thus, if the Wage Order intended for on-duty meal periods to not have to be recorded, then the Wage Order could have so stated as it did for rest periods.

Thus, the conclusion is that even on-duty meal periods have to be recorded under the Wage Orders. And if the meal period isn’t recorded, then there is the Werdeger presumption, that you didn’t receive the meal period.
 

Questions or if you need help right now?


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This article isn't legal advice
 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
William Turley
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