I own a small answering service. There are some times when we only have one person working. For example, the person working 11PM to 7AM works by themselves. In California, I have to provide 30 minute meal breaks after 5 hours. OK. But I need the phones covered 24 hours.

It is pretty clear based on the kind of business that I have that I can require this to be a paid, on-duty meal break. However, California law also appears to require me to get written agreement from the employee which they can revoke at any time.

Question, can I require this as a condition of employment and fire them if they will not agree to an on-duty, paid meal break?

Thanks.

Charley

Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. 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 employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 –15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.


http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

Thanks Patty. I understand what you wrote. I am pretty sure that my small business (an answering service) where we only have one operator on duty would qualify under the exemption that allows an on-duty meal period. And I understand that the employee must agree and sign an agreement which they can revoke. What I don't know is whether I can require that as part of the job and terminate someone who won't agree to an on-duty meal period.

In other words, like an all night convenience store where they only have one employee, if the employee decides to "revoke" his agreement to an on-duty meal period, can I terminate them? Can I make agreement to an on-duty meal period a requirement of the job since we have to have coverage 24/7?

Hmmmm, that I don't know. Maybe some of our more California experts could give you an opinion. Hang in there.

It does not really bother me that California requires a meal break (Maine does, too) nor that the employee must agree to waive the meal break (not required here, but my legislators love to mimic California). It will upset me if the employee can revoke the agreement, as allowed by law AND keep the job.

But I won't be surprised if CA says that is fine and the employer simply has to deal with it by bringing in someone to cover the break or simply not providing the service for 30 minutes (an excellent way to lose customers, but what should that matter?).

I did some looking in the CA field audit manual, and could not find the OP's exact point addressed. What I did find however, does not look good for the OP.

45.2.3 Limited Waiver Of Meal Period Requirement Allowed In Two Situations: ...
2. An on-duty meal period may be provided if the employee agrees in writing, and such on-duty meal is allowed “only when the nature of the work prevents an employee from being relieved of all duty”.
a. The test of whether the nature of the work prevents an employee from being relieved of all duty” is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties.
b. The written agreement for an on-duty meal period must contain a provision that the employee may, in writing, revoke the agreement at any time.
c. DLSE does not have the jurisdiction to exempt an employer from the meal period provisions in the Orders or those of Labor Code §§ 226.7, 512.

I finally got through to the Depart of Labor Standards Enforcement in California. They really couldn't and wouldn't give exact answers to my questions. Here is what they did say....

I might qualify as a company that can have on-duty meal breaks. He explained that if I didn't qualify, then I couldn't have them even if the employee agreed. (Think of an employee who is willing to work for less than minimum wage. You can't do that even if you both agree). He wouldn't give me a definitive answer.

OK. So let's assume I qualify. And assume I get an agreement by the employee to take on-duty meal breaks, for example from the single person who is there from 11PM to 7AM. OK. Now what happens if the person decides to revoke the agreement. Can I fire them. The answer from the guy at the DLSE was "probably not". It must be a "voluntary agreement". It might be considered a retaliatory firing. He said I would probably get myself in big trouble.

OK. So I said what am I supposed to do if I hire someone for that shift, everything is fine, then they decide they don't want on-duty meal breaks. What am I to do? No answer! Great. Thank's for the help!

He suggested I consult a lawer.

Obviously, I could hire more people so that I can stagger meal breaks. (I can't afford to at this point.) And even if I had two people, what about when one is sick?

I don't know if I can just not give them a meal break and pay the 1 hour/day penalty as a regular practice. Is that allowed? In other words, can I just ignore the law and pay the penalty?

Charley

charley000: Assume I get an agreement by the employee to take on-duty meal breaks, for example from the single person who is there from 11PM to 7AM. OK. Now what happens if the person decides to revoke the agreement. Can I fire them. The answer from the guy at the DLSE was "probably not". It must be a "voluntary agreement". It might be considered a retaliatory firing. He said I would probably get myself in big trouble.

I agree!

charley000: I don't know if I can just not give them a meal break and pay the 1 hour/day penalty as a regular practice. Is that allowed? In other words, can I just ignore the law and pay the penalty?

If you do, you will be committing a misdemeanor crime, as set forth in Labor Code 553. Ostensibly, this is punishable by jail time.

Another option could be to hire more employees and have each employee only work 5 hours per day.

There is no requirement that you provide the employees a meal break. The option is to either provide them a meal break, or pay the extra one hours pay. As the California Supreme Court just decided that the extra pay is a wage rather than a penalty, as long as the wage is paid on their regular pay day, there is no violation of the law.

I think the above point, raised by Barry, was an often overlooked point in the the debate about the Murphy case. Had Kenneth Cole won, it would have been a misdemeanor to not allow the meal break. Murphy v. Kenneth Cole is a recent California Supreme Court case that determined that the extra hour of pay is a wage rather than a penalty. I have a brief write up on the Meal Break Premium issue (http://laborlaw.typepad.com/labor_and_employment_law_/2007/04/murphy_v_kennet.html) with a link to a video presentation of the oral arguments.

In terms of firing the employee if they refuse to waive the meal period, this would likely be a wrongful termination as it would be terminating someone for exercising a legal right. It would be similar to saying "You can go vote in the election, but I will fire you if you do."

mtracy: There is no requirement that you provide the employees a meal break

Mike, I am surprised you believe this. Labor Code 512 specifically mandates meal breaks, and Labor Code 226.7 sets forth the financial consequences employers face if they do not provide them. Labor Code 553 sets forth the criminal consequences - potentially a year in jail. The Kenneth Cole decision did nothing to change this.

mtracy: Murphy v. Kenneth Cole is a recent California Supreme Court case that determined that the extra hour of pay is a wage rather than a penalty

The CA Supreme Court did decide earlier this week that the LC 226.7 premium pay for missed meals is a wage, not a penalty. The salient point of the ruling is that an employee who is deprived of his/her legally-mandated meal period enjoys a 3 year statute of limitation period to file suit (4 years if the suit is brought as B&P 17200 action) because it is a wage vs. a 1 year statute of limitation period if it were a penalty.

Kennth Cole specifically does not stand for the proposition that employers can electively decide whether or not to offer meal breaks and if they choose not, emloyers merely have to pay employees one hour of extra pay with no other attendent consequences. Employers who violate the provisions of LC 512 are very much subject to the criminal sanctions imposed by Labor Code 553.

For anyone interested in reading the John Paul Murphy v. Kenneth Cole decision, you can access it here http://www.courtinfo.ca.gov/opinions/documents/S140308.PDF

This is very interesting. I have been attempting for nearly three years to force my employer in to compliance . Filed with the DLSE ( employer just paid the claim)and the LWDA( who decided not to issue citations) . Numerous grievances filed with the employer as well. Filed an action under Paga( matter still pending) . All of this and still no meal periods.

I do not think any employer will actually ever be criminally prosecuted for violating labor code section 512 and sent to jail. The state cannot force compliance for a simple meal period let alone prosecute someone for it.

What happens when an employer continues not to ever provide a meal period or if the employees gets one it always past the five hour limit for example 5 .75 hrs and the employee is scheduled for a ten hour day. No mealperiod waivers exist.Or just tuff luck the employer does not care and the employee does not get one at all.

Question is does the " wage" apply to an employee who recieves the meal late?

I have a unbelievable situation I am dealing with .

Thanks

Interceptor

You don't have to take my word for it:
Just as an understaffed company may make the conscious decision to pay its employees time and a half to work overtime, the same understaffed company also can decide to have its employees forego their meal and rest breaks if it compensates them at a higher rate. In both instances, the employee earns the higher wage by working additional time.

Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp. 2d 891, 896 (D. Cal. 2005)

Tomlinson was a federal, district court opinion that has no precedential value in California. The California high courts have made it clear on various occassions that the Tomlinson judge was incorrect in finding that employers have any discretion as to whether or not they provide 30-minute, uninterupted meal periods to employees. To evidence you of this, I cite the following:


John Paul Murphy v. Kenneth Cole, 134 Cal.App.4th 728 (2005)

We disagree with the Tomlinson district court judge’s interpretation. The Labor Code does not allow employers to deny meal and rest breaks.


Deborah Mills v. Bed, Bath & Beyond, 135 Cal.App.4th 1547

Preliminarily, we note that Tomlinson federal trial court's decision on an issue of California law is not binding on this court. (See People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.). While we may follow the reasoning in a decision that is persuasive, that is not the case here.... The California Labor Code and wage orders mandate that break periods be provided; they do not leave it to employers to exercise their judgment as to whether breaks should be provided (Labor Code 512).


In its recently-issued, Kenneth Cole opinion, the California Supreme Court did nothing to disturb these findings.

Barry,

You are 100% wrong on this issue. The Murphy decision overruled both of the cases you cite. In fact, if you did cite either one of those cases in a California court, you would be subject to sanctions (fines) because they are not citable - that is officially listed as non-citable.

In fact, one of the cases you cite is the Appellate courts decision in Murphy -- they very case the the California Supreme Court OVERTURNED. As an additional note, Mills was also put on hold until after Murphy and the Murphy decision would specifically overturn its holding.

I read a lot of your post on his forum, and 99.9% of the time they are accurate and based on the law. However, this one is a little complicated, and you are basing your opinion on cases that have been overturned.

Finally, you are incorrect that a federal district court opinion has no precedential value in California. First, it does have precedential value in federal court. For instance, if you work for a corporation that is a "Delaware" corporation, and the amount demanded is more than $75,000, the defendant will likely remove your case to federal court. Thus, your California case will end up in federal court. Second, the judge was merely pointing out that it is not mandatory that they follow the court's decision. However, many California courts do choose to follow federal court decisions. This is called "persuasive authority."

In any case, I do not wish to go into this issue any further, as none of this discussion would benefit the average reader of this forum. I will just caution readers that just because someone quotes a court decision, it does not make it the law. There is a reason that we have attorneys. The law is more than simply "googling" for a phrase that supports your opinion.

As a side note, there is the following:


800. Every person operating a sawmill, shakemill, shinglemill,
logging camp, planing mill, veneer mill, plywood plant or any other
type of plant or mill which processes or manufactures any lumber,
lumber products or allied wood products, in this State shall allow
his employees a period of not less than one-half hour for the midday
meal, between the third and fifth hours of each day's shift after the
start thereof.



801. Any person, or agent or officer thereof who violates any
provision of this chapter is guilty of a misdemeanor, punishable by a
fine of not less than one hundred dollars ($100) nor more than four
hundred dollars ($400).


Thus, for the listed industries, it would be a misdemeanor. However, for everyone else, the above reasoning is applicable.

As a side note, there is the following:



Thus, for the listed industries, it would be a misdemeanor. However, for everyone else, the above reasoning is applicable.

And this means what, for the OP, who is concerned about lunch breaks?

Can she require no break be taken with the only cost to her being the pay for the hours worked OR

Does she have to pay extra for work during what should have been a meal break?

Can the employee back out on any agreement and not be terminated?

I am confused.

mtracy: I read a lot of your post on his forum, and 99.9% of the time they are accurate and based on the law, but....you are 100% wrong on this issue

We can agree to disagree, but I will tell you I am very well versed in the law -particularly on this matter. If you believe that employers have the option of legally denying employees their LC 512, legally-mandated, meal break so long as they pay them one hour of extra pay, you are in a legal minority of one. None of the notable, large, employer-defense, law firms (e.g., Littler Mendelson, Sheppard Mullen, Gibson Dunn, etc.) even come close to supporting your mis-understanding of the law.

I, too, believe this is getting off track for the average reader and do not want to pursue this debate any further, but feel compelled to issue a similar warning to the readers of this board. Just beacuse an attorney espouses a particular position does not mean it is correct. In every single courtroom proceeding, a lawyer is wrong 50% of the time.

ScottB: And this means what, for the OP, who is concerned about lunch breaks? Can she require no break be taken with the only cost to her being the pay for the hours worked?

Well, that depends on whether you believe Mike or me. Mike says yes, I say no.

Yes scott the meal period waiver may be revoked at any time by the employee . The employer can do nothing about this. See wage orders section 11 meal periods.Actually a meal period waiver would need to have a clause that permits the employee to revoke if they chose to.

I am by no means an attorney just a hard working person who never recieves a meal period working for as very large company. The company does it on purpose because of the nature of the business the meal period seriously hinders operations. They refuse to pay the additional wage as well.

I am certain that they will never be criminally prosecuted. Although I wish they were. This just does not happen and if so to whom?

The labor codes are sometimes conflicting and not so straight forward. Many of the codes are intepreted differently by employer and employees.

The only real remedy for this is to recover the addtional pay for the hardship imposed upon the employee.

I have been dealing with this exact same matter for nearly three years. I have complained to my employer repeatedly ,taken the matter to the DLSE . Then filed with the LWDA and have now filed a civil action in superior court.

Lets say I took the matter to the county District Attorney's office complaining that my employer was committing a crime . Think they would prosecute them ? I do not think so.

The only thing to do is take the employer to court and hammer them for wages ,penalties ,interest ,attorneys fees ect... That is if you even go to court because the employer will more than likely want to settle anyway.

I have been forced to work with no meal periods for a very long time and used the governments procedures and guess what , no meal periods provided .

M Tracy is correct.


Thanks

Interceptor

Yes scott the meal period waiver may be revoked at any time by the employee

So, how would this work for me, as an employer?

I provide security guards.

Company A needs coverage from 4 PM to 8 AM, Monday through Friday plus 24 hour a day coverage on Saturday and Sunday inside a locked building (a total of 128 hours a week, sufficient for three 40 hour employees and one eight hour part-timer OR eight hours of overtime for one or more of the full-timers). The guard must conduct hourly rounds of the four story building and, when not conducting rounds, be in the lobby to admit authorized personnel.

Plenty of time for the security guard to eat.

So, how do I provide a meal break if the employee does not agree to waive it?

Schedule each guard for six hours rather than eight? So they work six days (36 hours) instead of five days and 40? Not good for them. Not good for me.

Scott ,

See Ca labor code section 512. Look closely at the regulations for a meal period waiver .

Your best bet is to speak to a skilled labor law attorney to ensure you do it correctly and to make certain your industry is obligated to provide the meal period.

What you explain is a classic example as to why thousands of Ca employers continually violate this labor code. It actually hinders operations for many employers.

I tip my hat to you for wanting to do the right thing.


Interceptor

You understand, do you not, that Scott is in Maine and is speaking hypothetically? That he has no security guards or any other employees in CA? That what he is trying to do is point out the problems with the law as it stands?

This thread is getting rapidly out of control. I'm not going to lock it yet, but that point is fast approaching.

I went over to Littler, Mendelson's website and found the following article on the subject. They consider this subject to be very much in state of legal uncertainty and in need of legislation to sort things out.

http://www.littler.com/presspublications/index.cfm?event=pubitem&pubitemid=16323&childviewid=235

There are various uncertainties associated with the meal breaks. The requirement that employers provide meal breaks to non-exempt, hourly employees not being one of them. As to the applicability to this thread, the major uncertainty that Littler was highlighting is whether the IWC overstepped it bounds by allowing employers to even allow non, duty-free meal periods - albeit in only very limted work situations. Point being: There is no such allowance for this in the Labor Code.

Next time I come onto this thread it'll be with the locking button.

I'm sorry but why are we locking this thread?

Ok, so you can't fire an employee who revokes the agreement. But can on-duty meal periods be required as a condition of attaining employment?

I dont see anything that would cause the thread to be locked . I just dont understand why?

The matter at hand with the recent supreme court ruling is a very sensitive matter . And a victory for employees . Some agree some do not.

Villain an employer could not require an employee to forgo thier right to a meal period as a condtion to bieng hired. Remember the waiver could be revoked at any time by the employee with no reprisal . Actually a waiver only lets an employee work up to six hours and must contain the language granting the employee the right to revoke . M tracy mentioned some of this in his post

It's kind of like saying we will hire you but you must forgo your right. Imagine someone not hired due to this. Thats not good.

This is a complex matter for both employers and employees .

I hope the thread is not locked . Just people posting thier opinions.

Interceptor

Actually a waiver only lets an employee work up to six hours and must contain the language granting the employee the right to revoke . M tracy mentioned some of this in his post.

That is not true. You could work 8, 10, even 12 hours with an on-duty meal period.

Taken from the Iwc wage orders.

Section 11 (a)

No employer shall employ any person for a work period of more than (5) hours without a meal period of not less than 30 minutes,except that when a work period of not more than (6) hours will "Complete The Days Work "the meal period "May Be Waived "by mutual consent of the employer and employee.

The key words are . Not more than six hours will complete the days work the meal period may be waived.

A waiver is only valid until the six hour mark.Many people misundertsand this code.

Section 11(c)

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 bieng 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.

This section says an agreement can be made for an on duty meal period . No deduction from daily hours worked are taken . However the employee still has a meal period at five hours provided by the employer with interruption / not completely relieved of duty (and gets paid for it)that has not been waived.

There is much confusion over labor code section 512 and IWC wage orders section 11 parts A thru f.

Like yourself I do not wish to argue with anyone . I read the codes as an actual "waiver" ( meaning no meal period provided) is limited to the six hour mark upon completion of the work day.

I think there is a difference in an on duty meal period and a waiver.

You are correct employees can work several hours with an on duty meal period agreement

I am not going to respond any more to this thread due to the moderators wishes.

Peace

Interceptor

Essentially what has happened here is that we have deteriorated into yes-you-can/no-you-can't. That is not helpful to anyone.