“On-Duty” Meal Periods

The Labor Code affords employees a right to off-duty meal breaks, not just permission to eat while on-duty. The applicable Wage Order requires employers to provide every non-exempt employee who works more than five hours with daily “off duty meal periods,” consisting of an uninterrupted 30-minute period during which the employee is relieved of all duty. Wage Order 4-2001, 8 C.C.R. § 11040(11), reads as follows:

“No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. 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.”

The Wage Order permits an on-duty meal period only when the nature of the work actually prevents the employee from being relieved of all duty and when the employee has executed a valid, revocable on-duty meal period agreement (“ODMPA”).

Subdivision (12)(A) of the applicable Wage Order requires Defendants to permit workers to take a ten-minute rest period “per four (4) hours or major fraction thereof.” 8 C.C.R. § 11040(12)(A). An employee is entitled to a premium wage of one-hour of pay for each day that they were unable to take all the rest periods to which they were entitled. 8 C.C.R. § 11040(12)(B); Labor Code § 512.

Under Labor Code § 203, ex-employees may be entitled to waiting time penalties for an employer’s failure to pay them the wages they are owed for missed meal periods and rest breaks when that failure was willful.

Employers may not be able to prove that there is a “good faith dispute,” that wages were due pursuant to 8 C.C.R. § 13520, because the law regarding the three requirements of the “nature of the work” exception has been clear since 1993, and because the law regarding rest breaks has been clear that an employer is required at minimum to authorize and permit rest breaks under the Wage Order, Brinker and its progeny notwithstanding. See Road Sprinkler Fitters Local union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4^th 765, 781-783; Amaral, supra, 163 Cal.App.4^th at 1201-1204.