Time and again, we’ve seen employers demand that employees agree to waive meal breaks. In such cases the DLSE (Department of Labor Standards Enforcement) in California allows for such waivers based on a doctrine called “nature of the work”. . See DLSE Opinion Letter 1009.06.09 at 7. Three conditions apply to determining whether on duty meal periods can be required:
1. Does the nature of the work prevent an employee from believing relieved of all duty?
2. Is there a writing in place between the employer and employee agreeing to an on the job paid meal;
3. Does the written agreement state that the employee may, in writing, revoke the agreement at any time?
The right of an employer to insist on on-duty meal breaks in California is to be narrowly construed and has been called a “limited alternative” to off-duty meal requirements It is no defined by DLSE as a waiver, but rather a type of meal period that can be lawfully provided only in limited circumstances. The employer has the burden toe establish the facts that would justify an on duty period period. In essence, DLSE asks that the employer show that the work involved prevents the employee from being relieved of duty.
The type of work such as whether or not others can provide relief to an employee who breaks for a meal;
“Potential consequences” to the employer if an employee leaves for a meal;
The ability of the employer to anticipate and mitigate any consequences of allowing the break, such as planning the work in a manner that would allow the employee to leave for an off duty meal period;
Whether the work product will be destroyed or damaged by relieving the employee of all his or her duties during the 30 minute break.
Some of the industries in which these waivers come up with frequency is truck driving and guard duties. DLSE and the courts have consistently held that blank “on duty meal periods are to be construed narrowly. For example, if the employees each have varying circumstances as to whether or not they can leave their duty post, then a blanket waiver will not be allowed and an individualized determination must be made.
The standard of “virtual impossibility” of the work to provide an off duty meal period is not acceptable law and has been rejected by the DLSE. In some limited cases, a federal regulation might be violated if an off duty meal period is granted (eg, a Department of Transportation ruling that drivers must remain with their vehicles at “all times”; or a company who requires continuous operation of machinery requiring California Department of Labor Standards Enforcement
Many unanswered questions abound in this area of the law. For example, must an employee be the sole employee on duty at a certain time; what if there are others around who could relieve, but they work for a different employer than the one the on-duty meal plaintiff works for?
In sum, on duty meal periods (or waiver of meal periods entirely) should now be viewed in the light of the Brinker