Recently, I was asked by a client if they were in compliance if they had a non-exempt employee who could not take a meal period but paid them the hour as straight time. The non-exempt employee is a shift supervisor and cannot be relieved of their duties for 30 the required minutes.
My first reaction was, “of course not!” But then I thought about it for a minute, and realized that they were essentially paying the employee for an on-duty meal period every day, and if they had an on-duty meal period agreement with this employee, could it be ok?
To answer my own question, I did some research and yes, in fact, it could be ok. However, how the employer defines whether or not the employee can be relieved of all duties is the key to whether this is permissible or not.
In California, generally, employers are required to provide meal and rest periods to non-exempt employees. Under the applicable California Industrial Welfare Commission (IWC) Wage Orders, employers must provide a 30-minute, off-duty meal period prior to the end of the fifth hour of a work shift.
As a refresher, the Division of Labor Standards Enforcement (DLSE) has set forth the following three criteria in assessing whether an On-duty meal period is permissible:
- 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.
The next step - Determine if the employee cannot be relieved of duty.
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.
The DLSE website provides examples of jobs when on-duty meal periods meet this standard, including:
- A sole worker in a coffee kiosk
- A sole worker in an all-night convenience store
- A security guard stationed alone at a remote site
In an opinion letter, the DLSE has stated that on-duty meal periods were not appropriate for a fast food shift manager when other employees were present. The same would apply to a shift manager in another retail store environment.
In the letter, the DLSE states that they “cannot fathom why the other employees of the restaurant could not function in the absence of the shift manager for thirty minutes.” Even, as the employer asserts, that the employees may have questions that only the shift manager can answer.
So, what does that mean for most employers?
If you have a non-exempt employee who is not the sole worker at a location and cannot take a meal break, you should pay them the meal penalty for those days they could not take a meal break, or could not take their meal break before the end of the fifth hour of work.
If you have an employee who is a sole worker at a location and the nature of their work fulfills the requirements above, then you may provide them an on-duty meal period.
Please remember that you have to allow them the opportunity to eat a meal during their work time before the end of the fifth hour of work.
Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.
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