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Revoking my waiver for a duty-free lunch? California

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  • Revoking my waiver for a duty-free lunch? California

    I am a retail manager and when hired I was told that all manager have "on duty" lunches and we are paid for this time. We must be available to work during our meal break. Yesterday I was written up because I was seen on video taking a 15 minute nap during my lunch. It was stated that "I would not have been available for an emergency."

    I did some research and found out that I am supposed to have a "duty free" lunch of 30 minutes unless I have signed a waiver. I am also allowed to revoke my waiver at any time. Well, I don't remember signing anything. I am planning on reviewing my personnel file to see if I did sign a waiver. If I did, I plan on revoking it. I am tired on not ever getting any breaks. I don't even get my 10 minute breaks.

    I also understand that if I didn't sign a waiver then they have to pay me an hours pay for every day I didn't take a duty-free lunch. Is this true? That's a lot of money for me and every other manager at this company. Tens of thousands of dollars.

    Here are my questions:

    If I revoke my waiver do they have to comply and start letting me leave the site for lunch? Can they fire me because I revoke it?

    Can I request the one hour of pay penalty from the company directly or should I file a claim with the Department of Labor?

  • #2
    This is maybe complicated.
    - I am going to let someone else address possible termination issues. Not my area of expertise.
    - The "law" associated with CA meals is CLC 512. That particular law is not specific on the lunch rules related to Exempt vs. Non-Exempt employees.
    - The regulations however are the CA Wage Orders, and the language specific to penalties is in the Wage Orders. The Wage Orders consider the penalties to be specific to non-exempt employees only. If you are a "retail manager", then there is a good chance that you are Exempt, and the Wage Orders do not specify penalties for lunch violations related to Exempt employees.
    - Now the only party whose opinion actually matters here is either CA-DLSE or the CA Supreme Court. But based on what is actually published, those are the rules as far as I can tell. There is currently a major meal related case (Brinker) before the CA Supreme Court, but this particular issue as far as I know is not one of the issues being looked at.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      I'm not exempt, I'm hourly. My actual job responsibilities are basically as a glorified sales associate. I spend most of my work hours doing exactly what the rest of my crew does, cashiering, etc.


      • #4
        Originally posted by boca View Post
        I'm not exempt, I'm hourly. My actual job responsibilities are basically as a glorified sales associate. I spend most of my work hours doing exactly what the rest of my crew does, cashiering, etc.
        This is exactly what I suspected when I read "retail manager." You are 100% correct in your analysis of why could not possibly be exempt. CA law is that if you spend most of your time doing the same duties as the non-exempt employees you supervise, you are not exempt. Notwithstanding, this doesn't seem to be an issue.

        What is important to note is that the on-duty meal period provisions of the wage orders may be invalid. §512 of the LC does not allow for on-duty meal periods; the wage orders do. §516 allows the IWC to amend break period provisions except the provisions of §512. Again, §512 does not allow on-duty meal periods.

        Now assuming the on duty provisions are valid, you are allowed per the wage order, to revoke the on duty agreement, in writing, at any time. Ostensibly, you could not be fired for exercising your right to revoke the on-duty meal period.

        Now if there was never a properly drafted on duty agreement(e.g., the agreement must state the right to revoke), or if the nature of your work does not prevent you from being relieved of all duty, (I suspect, it does not) then the on duty agreement is invalid and you would need to be paid the additional hour of wages for each day you are not fully relieved for your meal period.
        "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA


        • #5
          In response to your first question: You employer can require you to remain on premises during your lunch period providing you are paid for that time. You must still be relieved of all duties. The only exception would be if there was objective criteria and a signed valid waiver for an on-duty meal period.

          On another note: You must receive a net 10 minute rest period for every 4 hours, or major fraction thereof, you work. Not being granted your rest breaks would also result in an hours pay for each day you are denied your rest breaks.


          • #6
            To clarify. Even if I did sign a waiver, if my job is such that I could have been relived of all duties for the 30 minutes, then the waiver is invalid?

            Usually there are only two people manning the store during a shift. The company is claiming that I need to be available for "emergencies" and that we have a policy that if more than two customers come in the both employees must be on the floor. If you are eating lunch, you are to stop eating, help the customer and then go back to your lunch. This not only applies to the managers but to the crew who clock off for lunch.

            Two days a week I am not there and the work still goes on without me. If an "emergency" happens then the employees are supposed to contact the district manager. It would seem to me that if the job was so critical that I can't take 30 minutes to eat then they wouldn't leave the store without a manager two days a week.

            I am going to tell them I am not going to work through lunches anymore. It will not go over well.


            • #7
              From the DLSE manual section

              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
              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.


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