When is an ON-DUTY Meal Period is Permissible?

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:

1. The nature of the work must prevent the employee from being relieved of all duty during the meal period;
2. The employee and employer must have previously entered into a signed agreement authorizing an on-duty meal period; and
3. 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:

1. A sole worker in a coffee kiosk
2. A sole worker in an all-night convenience store
3. 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.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Time for an I-9 Compliance Refresher?

I-9 Compliance

The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire.

Employers are required to perform the following I-9 verification requirements and to treat all new hires the same. This includes the following:

1. Complete the I-9 form for all new hires. This form establishes that individuals hired are authorized to work in the United States.
2. Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 form. If the documents are unexpired, allowed according to the list of acceptable documents on the most current I-9, and appear to be genuine and issued to the person presenting them, they should be accepted. Acceptable documents are listed at the end of the I-9.
3. Update and re-verify I-9s as needed.

If you discover problems with your I-9s, consider taking the following actions:

1. Conduct an audit to understand the scope of the problems;
2. Address problems that you find; and
3. Attempt to prevent future problems by implementing best practices.

Best Practices for Conducting an I-9 Audit

Step One: Preparing for the Audit

Determine the scope of your audit, will you review all the i-9 forms or only a sample? If you choose to review a sample, select the sample carefully. Make sure not select the forms to be audited based on employee's national origin or citizenship status. The safest approach may be a random sampling of forms.

Step Two: Conducting the Audit

Employers must check to see that there is an I-9 on file for every current employee who performs work for the employer in the United States. Employers should keep a list of current employees for whom they do not have an I-9.

Employers should not have an I-9 for nonemployees who may perform work, such as volunteers, independent contractors or consultants. If an employer does have an I-9 for these individuals, it should be removed from the employer's official I-9 file.

Employers should have two files of I-9s:

1. I-9 forms (electronic or paper) for current employees.
2. I-9 forms (electronic or paper) for terminated employees.

What to look for when auditing

1. Missing forms

2. Employers need to check the following information in each section of the I-9:

1. Section 1
1. The name, address, maiden name and date of birth must be completed.
2. For the current I-9, the Social Security number is voluntary except for employers that participate in the E-verify program.
3. The employee must identify his or her immigration status and sign and date the form.
4. The preparer or translator section is to be completed only if someone other than the employee completed Section 1 on behalf of the employee.
2. Section 2
1. The proper document must be entered into the appropriate column. For example, employers must ensure that a List B document is in fact listed under List B and not under List C or List A.
2. All required information must be entered for each document.
3. The documents listed must satisfy the requirement to provide both proof of identity and proof of eligibility to work in the U.S.
4. The certification section must be completed, and a representative of the company must sign and date the form.
3. Section 3
1. This section should be completed only if the employee's work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required. In most cases, Section 3 will be blank.
2. Expired permanent resident cards and List B documents from the I-9 do not need to be reverified. These documents must not be expired when the I-9 is initially completed, but their subsequent expiration does not trigger the requirement to re-verify the I-9.
3. You should exercise caution throughout the audit to avoid unlawful immigration practices. The purpose of your audit is to ensure compliance with the federal immigration law, not to target or single out specific employees. Ensure that nothing about the timing or scope of the audit is or could be perceived to be discriminatory or retaliatory.

Step Three: Address Problems in the I-9s

Each I-9 should be reviewed and put into groups based on your findings. The problem I-9s will be handled separately and in priority order. Current employees who have no I-9 on file are the highest priority, as their eligibility to work in the United States should be verified as quickly as possible.

Missing I-9s

If you have missing I-9s, you should complete the current version of the I-9 as soon as possible. You should not backdate the form when you sign it, although you should indicate the actual date employment began in the relevant section.

Missing or Incorrect Information on the I-9

The employer should not make any corrections to Section 1. If you find incorrect or missing information in this section, the employee will need to make any necessary corrections. To do so, the employee should draw a line through the incorrect information, enter the correct or missing information, and initial and date the corrected or missing information.

If an I-9 for a former employee contains incorrect or missing information, you can attach a signed and dated statement to the existing I-9 identifying the incorrect or missing information in the form and explaining that the I-9 cannot be corrected because the employee is no longer employed by you.

Employers should follow the same procedure for missing or incorrect information is in Sections 2 or 3. You should not try to conceal changes made to I-9s, either by erasing or covering up existing information. If there are too many errors to correct, you can redo the sections (2 and/or 3) containing errors on a new I-9 with the complete and accurate information, sign and date it with the current date, and staple it to the existing I-9.

Whether you correct an I-9 on the existing form or on a new form, you should also always attach a signed and dated explanation of the action taken.

If Sections 2 or 3 were not completed on the existing form, you should complete them as soon as possible, list the actual date that the person’s employment began and sign and date the section with the current date. Also attach a signed and dated explanation of the steps taken to correctly complete the I-9.

Step Four: Complete the Audit

As corrections are made and missing I-9s begin to come in, an employer's task will be to organize the I-9s and clearly document the steps it took during the audit. Employers can refer to the guide on how to retain and file I-9s for additional guidance on how to organize their I-9 files. Employers may wish to print this procedure to document the process they followed during the audit process. Employers should also retain the I-9 audit logs and communications to employees regarding the I-9 audit process. Employers may wish to keep the audit documentation in a separate I-9 audit file or to place this documentation in their files with the I-9 forms themselves.

Ensuring your I-9s are compliant is extremely important. Employers can face civil and criminal penalties for knowingly hiring or continuing to employ individuals who are not authorized to work in the United States. Federal immigration law requires that all employers verify that an individual is authorized to work in the United States before employing that person. You verify employment eligibility by completing the I-9 for every new employee. If you don’t comply with the requirements — either by not completing the form or not doing so properly — you can face sanctions.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for size businesses throughout Southern California.