Recent California court decisions provide additional guidance regarding the propriety of offered meal and rest periods in California. In general, employers are required to authorize and provide meal and rest periods to non-exempt employees. Under the applicable California Industrial Welfare Commission (IWC) Wage Orders, employers must provide a paid rest period of at least ten minutes for every four hours of work and a 30-minute, off-duty meal period prior to the end of the fifth hour of a work shift. A rest period is not required if an employee’s total daily working time is less than three and one-half hours. An employee whose work period does not exceed six hours in a day may waive the required meal period by mutual consent of the employee and employer.
Where the employee works longer than ten hours in a day, the employer must provide a second off-duty, 30-minute meal period. However, this second meal period may be waived by mutual consent of the parties when the employee works less than twelve hours in a day and has not waived the first meal period.[1] When the employer fails to provide an employee with a meal period or rest break, a “premium” of one additional hour of pay at the employee’s regular rate must be paid for each day missed.[2]
On-Duty Meal Periods
A limited exception to the above meal period rules allows an employee to remain “on-duty” during the required period. An employee may sign an on-duty meal period agreement if the nature of the work prevents an employee from being relieved of all duty. The on-duty meal period agreement must be a written agreement allowing for an on-the-job paid meal period as between the employer and employee.[3] Such on-duty meal periods must be paid at the employee’s regular rate of pay.[4]
The Division of Labor Standards Enforcement (DLSE) has set forth the following three prongs in assessing whether an on-duty meal period is permissible: [5]
The nature of the work must prevent the employee from being relieved of all duty during the meal period;
The employee and employer must have previously entered into a signed agreement authorizing an on-duty meal period; and
The signed agreement must expressly state that the employee may, in writing, revoke the agreement at any time.
Often misconstrued as a meal period waiver, an on-duty meal period agreement is more aptly described as an agreement to take a paid on-duty meal break in place of an unpaid, off-duty meal break. To illustrate, it is permissible for an employee working an eleven-hour shift to take an on-duty meal break and waive the second meal break, assuming all requirements of the exception and waiver are met. Importantly, an employer not subject to the on-duty meal break exception, either because the nature of business work falls outside of the exception or because an employee has declined to enter into such an agreement, must compensate an employee for any missed meal periods and associated premium pay.[6]
In consideration of the wide array of industry practices, the DLSE applies a “multi-factor objective test” to determine whether the nature of the work justifies an on-duty meal period:
The availability of other employees to provide relief to an employee during a meal period;
The potential consequences to the employee if an employee is relieved of all duty;
The ability of the employer to anticipate and mitigate these consequences; and
Whether the work product or process will be destroyed or damaged by relieving the employee of all duty.
Recently, in Driscoll v. Granite Rock Company,[7] the California Court of Appeal clarified an employer’s duty with respect to meal periods. Factually, Granite Rock Company was engaged in the manufacture and transportation of concrete, and plaintiffs were “mixer-drivers” whose duties were to assist in the loading of concrete into mixer trucks and delivery of freshly-mixed concrete to customers. The plaintiffs alleged the employer had (1) failed to provide them with proper off-duty meal periods; (2) failed to pay the meal period “premium” for an additional hour of pay for each day missed; (3) “forced, expected, or trained [the employees] involuntarily to sign [on-duty meal period agreements] or miss off-duty meal periods against their will;” and (4) fostered on-duty meal period agreements that were invalid as written.[8]
At trial, evidence was introduced showing that a certain number of employees entered into an on-duty meal period agreement which provided that the employee understood his or her right to revoke the agreement at any time “by providing at least one (1) working day’s advance” notice to the employer. The trial court found the one-day revocation notice provision failed to satisfy the requirements of the applicable Wage Order by allowing the employee to revoke the on-duty meal period agreement at any time. As such, the on-duty meal period agreement was invalid as a matter of law.
With respect to the claim of defendant’s failure to provide proper off-duty meal periods, the Court reiterated that an employer’s only duty is to provide for timely, off-duty meal periods; the employer is not obligated to police meal breaks to ensure they are taken. Moreover, the Court highlighted that “what will suffice [for an employer’s obligations to provide timely meal breaks] may vary from industry to industry.” The Court found defendant had provided a legally compliant Employee Handbook, which advised employees of their right timely meal periods. Defendant had properly posted the applicable Wage Orders advising employees of such rights. Further evidence was presented at trial in which employees acknowledged that they received, reviewed, and were aware of their rights under the policy. Some employees testified that they refused to take off-duty periods in favor of continuing work. No evidence was presented showing that defendant ever denied any employee’s request for a timely meal period.
As for the claims of defendant’s failure to pay appropriate meal period premiums, the Employee Handbook advised that special pay, equivalent to that of a meal period premium, would be paid to employees who refused or revoked the on-duty meal period agreement and who missed a timely off-duty meal period. In fact, three employees had revoked their on-duty meal period agreement and received the premium pay. Moreover, all employees who had entered the on-duty meal period agreement were paid consistent with policy. Therefore, the Court found no violations.
The Court acknowledged that defendant’s meal period policies were “particularly appropriate” in the context of the ready-mix concrete industry because employees were charged with managing rolling drums of freshly batched concrete at any time throughout their work day. As such, the employee’s lunch period depended upon the state of concrete in his or her truck. Because of this, the nature of concrete mixing and delivering made scheduling off-duty meal periods in advance nearly impossible. The Court reiterated that an employer was not required to affirmatively schedule meal periods, but rather, to only make them available as appropriate.
Lastly, the Court found plaintiffs had failed to prove they were forced to sign the on-duty meal period agreements involuntarily; rather, plaintiffs were given the opportunity either sign the on-duty meal period agreement or refuse to sign and be paid the meal premium equivalent.
Legality of On-Call Rest Periods
The California Supreme Court recently assessed whether employers are required to provide off-duty rest periods and whether employers may require employees to remain “on-call” during rest periods in Augustus v. ABM Securities Services, Inc.[9] In that case, the plaintiffs were employed as security guards and alleged their employer failed to provide proper rest periods. The plaintiffs were required and instructed to “remain vigilant and responsible to calls when needs arose,” including during rest periods.
Labor Code section 226.7 prohibits an employer from requiring an employee to work during a meal or rest period. As noted previously, the applicable Wage Order provisions governing meal periods require that employees be relieved of all duties during a meal period. However, no such requirement is expressly found in the provision relating to rest breaks. Based on this, the Court of Appeal inferred that the off-duty requirement was not intended for rest periods.
The California Supreme Court reversed the decision, holding instead that employers are required to “… relieve their employees of all duties and relinquish any control over how employees spend their break time.” The Court pointed to the absence of any language in the applicable Wage Order expressly authorizing on-duty rest periods in support of its determination.
The Court went on to address whether the obligation to relieve an employee of all duties is met when an employee is required to remain on-call. In a clear departure from the fact-specific approach taken in prior cases to assess whether on-call time constitutes working time, the majority concluded that on-call rest periods were strictly impermissible. The Court reasoned that allowing courts to address whether an on-call obligation unreasonably interferes with an employee’s opportunity to take an uninterrupted rest break would result in “less clarity and considerably greater administrative complexities.”
Impact Upon Employers
An on-duty meal period agreement is generally valid where: (1) it is justified by the nature of work; (2) it is compensated; (3) it is a written agreement between the employer and employee; (4) it is revocable at any time by the employee; (5) the employee is apprised his or her statutory right to off-duty meal breaks; and (6) the employee has voluntarily entered into the agreement. Employers are advised to carefully assess whether the nature of an employee’s job duties warrants application of the on-duty meal period agreement.
With respect to rest periods, the California Supreme Court has ruled that employers must relieve an employee of all duties for the duration of rest breaks, including the duty to remain on-call. Notably, for situations in which it is “especially burdensome” for an employer to relieve an employee of all duties during rest periods, the Court has set forth the option to either: (1) provide an employee with another rest period to replace the interrupted rest period or (2) provide premium pay for each workday that a rest period is not provided.
The rules concerning meal and break periods will continue to evolve as case law develops. Employers should stay abreast of the latest developments, as failure to provide meal and rest breaks in accordance with California law can result in costly premiums, penalties and other potential damages under the California Labor Code and California Business and Professions Code. The first step in avoiding such liability is to ensure that all employment policies and handbooks are compliant with applicable wage and hour laws and to develop and effectively implement regular self-audit procedures.
[1] Cal. Lab. Code § 512(a).
[2] Cal. Lab. Code § 226.7(c).
[3] IWC Wage Order No. 1-2001, subd. 11(C).
[4] Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968.
[5] Dept. Industrial Relations, DLSE Opn. Letter No. 2002.09.04 (2002).
[6] Lab. Code § 226.7(c); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal. 4th 1094.
[7] Driscoll v. Granite Rock Co., No. H037662, 2016 WL 6994923 (Cal. Ct. App. Nov. 30, 2016), as modified (Dec. 22, 2016).
[8] Driscoll v. Granite Rock Co., No. H037662, 2016 WL 6994923 at *2.
[9] Augustus v. ABM Security Services, Inc., (Cal., Dec. 22, 2016, No. S224853) 2016 WL 7407328, at *8.