Jun 3

Paid ‘N Full: On-Duty and On-Site Meal Periods

If you're in California, your employer better pay you if he makes you take a meal break on-duty or on-site.

If you’re in California, your employer better pay you if he makes you take a meal break on-duty or on-site.

In California, an employer must “provide” a nonexempt employee with an unpaid 30-minute meal period after five hours of work and a second 30-minute meal period after 10 hours of work.1 The employer “provides” an unpaid meal period when he: (1) relieves the employee of all duty during the meal period; and (2) lets him come and go as he pleases during the meal period. In some cases, an employer can provide on-duty and/or on-site meal periods. He’d just better make sure the employee is “paid ‘n full.” Here’s some food for thought about that.

When Are On-Duty Meal Periods Permissible?

California law carves out a limited exception to the rule that an employer must relieve an employee of all duty during a meal period. The employer may require the employee to work through a meal period if: (1) the nature of the employee’s work prevents the employer from relieving him of all duty; (2) the employee agrees in writing to a paid on-duty meal period; (3) the agreement states that the employee may, in writing, revoke it at any time; and (4) the employer pays the employee at least minimum wage for the meal period.2

The “nature of the work” exception applies in two situations.3 First, the exception applies when an external force requires the employee to be on duty at all times. For example, a trucker who transports hazardous materials and must attend to his vehicle at all times would have to take an on-duty meal period.4 Second, the exception applies when the employee is the sole employee on duty, no other employees can cover for the him, and closing the business for an off-duty meal period would impose an undue hardship on the employer.5

When Are On-Site Meal Periods Permissible?

Even if an employer can’t require an employee to eat on-duty, he can make him eat on-site. In fact, the employee doesn’t even have to sign an agreement for the employer to require an on-site meal period. But an employer who requires an on-site meal period must do two things. First, he must pay the employee at least minimum wage for the meal period.6 Second, the employer must designate a “suitable place” on the premises for the employee to take the meal period. (The bathroom isn’t such a place.7 )

Employees who work the graveyard shift can’t truly eat off-site even when their employer lets them. For that reason, the law requires many employers to follow special rules if a meal period occurs meal period occurs on a shift starting or ending between 10 p.m. and 6 a.m. The employer must make “facilities” available to graveyard shift employees for securing hot food and drink or for heating food or drink.8 Likewise, the employer must provide a “suitable sheltered place” (not the bathroom) in which the employees can consume the hot food or drink.9

  1. Lab. Code §512(a). 

  2. IWC Wage Orders §11(A). 

  3. Abdullah v. US Security Associates, Inc., 731 F. 3d 952, 959-961 (9th Cir. 2013). 

  4. DLSE Op. Ltr. 2009.06.09 at 8. 

  5. DLSE Op. Ltr. 2003.11.03 at 3; DLSE Op Ltr. 1994.09.28; DLSE Op. Ltr. 2002.09.04 at 2-3. 

  6. Bono Enterprises, Inc. v. Bradshaw, 32 Cal.App.4th 968 (1995). 

  7. GISO 3368(b). 

  8. IWC Wage Orders. 

  9. Id

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.