Some employers claim to serve free meals as a fringe benefit. But an employee can’t have his cake and eat it too. If an employer serves a meal, he can credit the value of a meal against the minimum wage.1 And that can really take a bite out of an employee’s paycheck: $3.62 for breakfast, $4.97 for lunch, and $6.68 for dinner.2 But an employer who wants to claim a meal credit better ensure that the employee (1) “receives” a “bona fide” meal “consistent with his work shift; and (2) voluntarily agrees in writing to the meal credit. If your employer purports to offer free meals, here’s some food for thought about meal credits.
Employer-Provided Meals: What Are the Essential Ingredients?
For an employer to claim a meal credit, the meal must be “bona fide.” That means a meal must be an “adequate, well-balanced serving of a variety of wholesome, nutritious foods.”3 The Wage Orders don’t define any of those terms. Presumably, an employer can’t just serve an employee a popsicle and deduct $6.68 for it. But reasonable minds can disagree about what the Wage Orders require. For example, bugs are high in protein, at least if you eat enough of them. If an employer serves enough bugs, he might be able to claim a meal credit. So don’t be surprised if “french flies” are on the menu.
The meal must be also “consistent with an employee’s work shift.” That, too, is a mysterious phrase. The IWC probably means that an employer can’t serve breakfast for an evening meal period. But figuring out what’s for dinner is no picnic. The employer might get in trouble just for serving a breakfast burrito for dinner. Figuring out what meal is consistent with the graveyard shift is bound to haunt an employer even more. The Wage Orders just say that employer must make facilities available for “securing hot food and drink or for heating food or drink” if a meal period occurs on a shift beginning or ending at or between 10 p.m. and 6 a.m.4
The Wage Orders say that an employer can’t credit a meal that an employee doesn’t “receive.”5 The Wage Orders also don’t define “receive,” but whatever that word might mean, it certainly doesn’t mean “eat.” If the IWC intended to deny credit for uneaten meals, it easily could’ve said so. Unfortunately, a court is powerless to change the Wage Orders. When a judge interprets the law, he may not “insert what has been omitted, or to omit what has been inserted…”6 Consequently, an employer might be able to sneakily place a meal on an employee’s desk just to claim a meal credit.
Meal Credit Agreements: What Must They Include?
Even if an employer hires Julia Child to cook for the employees three times a day, the employer can’t claim a meal credit against an employee’s wages if the employee doesn’t voluntarily agree to the meal credit in writing. Like any other agreement, a meal credit agreement isn’t voluntary unless the parties enter it free of duress, menace, fraud, mistake, and undue influence.7 For example, an employer can’t threaten to withhold an employee’s wages or cancel his health insurance, let alone put a gun to his head, to get him to sign on the dotted line of the meal credit agreement.
The Wage Orders don’t say what a meal credit agreement must include to be voluntary. In a case about whether an on-site apartment manager agreement (OSAMA) was voluntary, the Court of Appeal held that a OSAMA didn’t have to include amount of a rent credit, that the landlord would take a rent credit against the minimum wage, or that the law entitled the manager to the minimum wage. By analogy, a meal credit agreement doesn’t have to include the amount of a meal credit, a warning that the employer will take the meal credit against the minimum wage, or a reminder that the law entitles the employer to minimum wage.