A limited exception to the above rules for meal times allows an employee to remain “on duty” for the required period. An employee may sign a meal on duty contract if the nature of the work prevents an employee from being relieved of all duties. The meal of service agreement must be a written agreement that allows for the time of paid meals at work between the employer and the employee. [3] These on-duty meal times must be paid at the employee`s regular rate of pay. [4] This decision is a rare gain for California employers and underscores the importance of complying with meal and rest requirements. The Division of Labor Standards Enforcement (DLSE) has established the following three points to assess whether a serving meal is permitted: (5) A service meal contract is generally valid if: (1) it is justified by the nature of the work; (2) he is compensated; (3) it is a written agreement between the employer and the employee; (4) it may be revoked by the employee at any time; (5) the employee is informed of his legal right to meal breaks outside working hours; and (6) the employee has voluntarily entered into the contract. Employers are advised to carefully consider whether the nature of an employee`s professional obligations warrants the application of the meal-of-service agreement. At trial, evidence was presented that a number of employees had entered into an agreement on official meals, which provided that the employee understood his right to withdraw from the agreement at any time “by notifying the employer at least one (1) working day in advance”. The trial court found that the provision of the one-day cancellation policy did not meet the requirements of the applicable salary range by allowing the employee to revoke the meal on duty agreement at any time. As a result, the service meal agreement was legally invalid.
Recent California court decisions provide additional guidance on the appropriateness of the meal and rest periods offered in California. In general, employers are required to approve and provide meal and rest periods for non-exempt employees. Under current California Industrial Welfare Commission (IWC) wage regulations, employers must provide for a paid rest period of at least ten minutes for every four hours of work and a 30-minute meal outside of working hours before the end of the fifth hour of a shift. A rest period is not necessary if an employee`s total daily working time is less than three and a half hours. An employee whose working time does not exceed six hours per day may waive the required meal time by mutual agreement between the employee and the employer. Often misunderstood as a waiver of meal times, a service meal contract is more accurately described as an agreement to take a paid break instead of an unpaid meal break and outside of service hours. For example, an employee who works an eleven-hour shift is permitted to take a business lunch break and waive the second lunch break, provided that all the requirements of the exception and waiver are met. Importantly, an employer who is not subject to the exemption for business meal breaks, either because the nature of the corporate work is not covered by the exception or because an employee has refused to enter into such an agreement, must compensate an employee for missed meal times and related bonus earnings. [6] The California Supreme Court recently ruled in Augustus v. ABM Securities Services, Inc. to consider whether employers are required to provide rest periods outside of working hours and whether employers can require employees to remain “on call” during rest periods.
[9] In this case, the applicants were employed as security personnel and stated that their employer had not provided adequate rest periods. Applicants were asked to “remain vigilant and responsible for calls when there was a need,” even during rest periods. With respect to the allegations that the respondent did not pay reasonable mealtime bonuses, the Employee Handbook noted that employees who refused or revoked the duty meal agreement and missed a timely meal time would receive a special salary equivalent to that of a meal fee .. . . .