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Question concerning lunch breaks in CA California

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  • r53
    replied
    Originally posted by smallbizhr View Post
    But you are relieved of duty. You just can't go very far for your lunch. That is perfectly legal. The employer can restrict where you have lunch if they provide something like a lunch room.
    That is incorrect. Please see the ruling in the beginning of the thread with the link concerning lunch on premises. And are you in CA?

    If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968
    Last edited by r53; 08-14-2010, 06:21 PM.

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  • r53
    replied
    Originally posted by smallbizhr View Post
    Okay, I think there is some hair splitting going on. He is relieved of all duty. He is only restricted by how far away he can go. Basically consider it on call. If his lunch is shortend because he is called back, then yes, he must be paid. If he is not called back, he doesn't get paid.
    On call during a lunch period while working? And without an agreement? Are you in CA?

    And I have to be relieved of duty 100% during the rest period and that's not the same as being on call. I know about oncall becauuse I did that for 10 years.
    Last edited by r53; 08-14-2010, 06:23 PM.

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  • Worriedspouse
    replied
    If you want to consider it on call then it must be by mutual agreement for the on duty meal period. I am going by the OP being required to be "no more than 5 minutes away from the building in case there is a trouble call". That would indicate that the OP is expected to respond to the call within that 5 minute criteria. That does not fit the relieved of all duties requirement. The employer would have to meet the objective criteria requirement under 2a of 45.2.3.1 to even broach the on duty meal agreement.

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  • smallbizhr
    replied
    Originally posted by Worriedspouse View Post
    The problem is the OP must be relieved of all duties for the full 30 minutes. Yes, the employer may require the employee to remain on premises during that time but it must be paid and the employee relieved of all duties for 30 consecutive minutes. An on duty meal period is allowable only by mutual agreement between employee and employer. Under section 45.2.3.1 of the DLSE manual.

    2. An on-duty meal period may be provided if the employee agrees in writing, and such onduty
    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.

    Okay, I think there is some hair splitting going on. He is relieved of all duty. He is only restricted by how far away he can go. Basically consider it on call. If his lunch is shortend because he is called back, then yes, he must be paid. If he is not called back, he doesn't get paid.

    Leave a comment:


  • Worriedspouse
    replied
    The problem is the OP must be relieved of all duties for the full 30 minutes. Yes, the employer may require the employee to remain on premises during that time but it must be paid and the employee relieved of all duties for 30 consecutive minutes. An on duty meal period is allowable only by mutual agreement between employee and employer. Under section 45.2.3.1 of the DLSE manual.

    2. An on-duty meal period may be provided if the employee agrees in writing, and such onduty
    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.

    Leave a comment:


  • smallbizhr
    replied
    Originally posted by r53 View Post
    The employee must be completely relieved from duty for
    the purposes of eating regular meals. Ordinarily 30 minutes or more is
    long enough for a bona fide meal period. A shorter period may be long
    enough under special conditions. The employee is not relieved if he is
    required to perform any duties, whether active or inactive, while
    eating.

    11. Meal Periods
    (A) 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.
    But you are relieved of duty. You just can't go very far for your lunch. That is perfectly legal. The employer can restrict where you have lunch if they provide something like a lunch room.

    Leave a comment:


  • r53
    replied
    Originally posted by smallbizhr View Post
    Okay, here is a thought. If you can still take your meal break uninterupt and be within the 5-15minute return time, that is perfectly legal. The er doesn't need to even allow you to leavet the premises if they provide and area to eat. At least this is my understanding. Now if you are called back, then you get paid.
    The employer doesn't have to let you leave the premises but he has to pay it.

    If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968
    http://www.dir.ca.gov/dlse/opinions/2001-01-12.pdf


    The employee must be completely relieved from duty for
    the purposes of eating regular meals. Ordinarily 30 minutes or more is
    long enough for a bona fide meal period. A shorter period may be long
    enough under special conditions. The employee is not relieved if he is
    required to perform any duties, whether active or inactive, while
    eating.

    11. Meal Periods
    (A) 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.
    Last edited by r53; 08-13-2010, 01:38 PM.

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  • smallbizhr
    replied
    Originally posted by r53 View Post
    I did not have any proof other than a verbal statement from a person who is a team lead/supervisor. I finally the policy in writing from our manager who is actually someone listed in the organization chart. He's actually the regional manager.

    Is this something the organization would have to pay penalties to us? This was intentional because they signed a bad contract and have been trying to make the loss profits since 2003.
    Okay, here is a thought. If you can still take your meal break uninterupt and be within the 5-15minute return time, that is perfectly legal. The er doesn't need to even allow you to leavet the premises if they provide and area to eat. At least this is my understanding. Now if you are called back, then you get paid.

    Leave a comment:


  • r53
    replied
    Originally posted by Pattymd View Post
    You still haven't done anything about this 11 months after your first post? Clock is ticking. File the wage claim as previously advised and let the DLSE sort it out.
    I did not have any proof other than a verbal statement from a person who is a team lead/supervisor. I finally the policy in writing from our manager who is actually someone listed in the organization chart. He's actually the regional manager.

    Is this something the organization would have to pay penalties to us? This was intentional because they signed a bad contract and have been trying to make the loss profits since 2003.

    Leave a comment:


  • Betty3
    replied
    Definitely file the wage claim as previously suggested. Good luck.

    Leave a comment:


  • Pattymd
    replied
    You still haven't done anything about this 11 months after your first post? Clock is ticking. File the wage claim as previously advised and let the DLSE sort it out.

    Leave a comment:


  • r53
    replied
    Update

    Yesterday, we received an e-mail from our manager stating that the client and vendor (my employer) agreed a few years ago we could only be 15-20 minutes away from the site, and if we couldn't get back in time when there was a ticket we would be in trouble.

    That's not a big deal when there are two of us on staff but two shifts a day, four days a week, there is only one person there in each. Effectively, we can't leave the site to go to lunch without that restriction. Our supervisor sent an e-mail with the schedule that verfiies that there are only one person per shift four days out of the week.

    We've stopped certifying we take our breaks almost a year ago.

    Does this sound like a strong case based on the e-mail from management?
    Last edited by r53; 08-11-2010, 09:01 PM.

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  • r53
    replied
    Originally posted by Worriedspouse View Post
    There could also be an additional one year added if the employer maintained an unfair advantage over its competitors under Buisness and Professionns Code §§ 17200-17208.
    I think they might have a pricing advantage over it's competition with this practice although we are a small piece of the account. Most of the others are exempt and are worked 60-70 hours a week without even a thank you from mgmt.

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  • r53
    replied
    I was conferring with my colleagues about this and we are not sure if that 5 min rule is a written policy. It was verbally told to us by our team lead who gets his info from management. The whole reasoning behind staying is take care of severity 1 tickets. The contract requires resolution from the time it was reported. Our mgmt decided we would not a factor in delaying the resolution and specified verbally through the team leads. The team leads are not management but they do participate in management meetings with management, and sometimes represent management in meetings. The sev 1 tickets response times are documented and published, and is required by everyone to know. If we can't prove it based on the lack of a written policy will the verbal edict along with the supporting doc for sev 1 calls be enough to support our claims?

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  • Pattymd
    replied
    Meal money as in the time? Easiest? DLSE. Faster? Law suit. Of course, the first is free; the second will cost you.

    Leave a comment:

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