Moreover, California Labor Code § 512 provides:
“An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”
By failing to consistently provide uninterrupted and unrestricted meal and rest periods to workers, California employers can face be forced to pay significant amounts of money pursuant to California Labor Code §§ 226.7 and 512, and §§ 11 and 12 of the applicable Industrial Welfare Commission Wage Order.
Some companies ask employees to remain on duty during their lunch period. This often occurs with a lone security guard.
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee explicitly providing for an on-the-job paid meal period. The written agreement must state that the employee may, in writing, revoke the agreement at any time pursuant to Industrial Welfare Commission Wage Orders 1 -15, Section 11 and Wage Order 16, Section 10. 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. Some examples of jobs that may fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
The Department of Labor Standards Enforcement’s (“DLSE”) Opinion Letter 2009.06.09 concerned Industrial Welfare Commission Wage Order No. 9-2001, subd. 11(C) (Cal. Code Regs., tit. 8, § 11090, subd. 11(C)), which applies to the transportation industry. Subdivision 11(C) contains the same three requirements for any on-duty meal period as other wage orders. In 2013, the Ninth Circuit U.S. Court of Appeals described this opinion letter. The following passage is instructive. The Ninth Circuit explained that the DLSE has found that the “nature of the work” exception applies to two categories: “(1) where the work has some particular, external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer [or at a particular location]. For example, in its most recent opinion letter, DLSE concluded that employees who transport hazardous materials, and are required by federal regulation to attend to their vehicles at all times, are covered by the ‘nature of the work’ exception.” Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 959-960 (9th Cir. 2013) (DLSE Opinion Letter 2009.06.09 at 8).