November 18, 2019

November 18, 2019

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DLSE Says: Under Wage Order 5, On Duty Meal Periods Must Be At Least 30 Minutes in Length

By way of background, in Palacio v. Jan & Gail’s Care Homes, Inc. (2015) 242 Cal.App.4th 1133, the Fifth District Court of Appeal considered the interplay between subdivisions 11(A) and 11(E) of Wage Order No. 5.

Subdivision 11(A) allows employers and employees to agree that meal periods will be on duty and to revoke these voluntary agreements at any time and states:

No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. 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 parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

Subdivision 11(E), in contrast to subdivision 11(A), enables employers to require employees to work on-duty meal periods, provided certain conditions are met and states:

Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24-hour residential care, and employees of 24-hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met:

(1)(a) The residential care employees eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or

(b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no charge to the employee.

(2) An employee, except for the night shift, may exercise the right to have an off-duty meal period upon 30 days’ notice to the employer for each instance where an off-duty meal is desired, provided that, there shall be no more than one off-duty meal period every two weeks.

The Palacio employer required its employees to work on-duty meal periods under subdivision 11(E) and to sign agreements waiving their right to off-duty meal periods. Palacio held that the employer “was not obligated to comply with subdivision 11(A) by including a provision in the agreements giving the employees the right to revoke them. A similar opinion letter by the Division of Labor Standards Enforcement (“DLSE”) stated similarly that the right-to-revoke language is not required because, “if a care home meets the requirements of [subdivision] 11(E), it does not also need to comply with [subdivision] 11(A).”

In L’Chaim House, Inc. et al. v. Division of Labor Standards Enforcement(2019) 38 Cal. App. 5th 141, the DLSE cited L’Chaim for wage and hour violations due to allegations that L’Chaim was requiring employees to work “on-duty” meal periods that were not at least 30 minutes long. Relying on the language of subdivisions 11(A) and 11(E) of Wage Order No. 5 and considering the holding in Palacio, L’Chaim argued that it was not required to do so since it fell under the exception in subdivision 11 (E). However, the California Court of Appeal held that L’Chaim was fundamentally misreading subdivision 11 of Wage Order No. 5. The Court held that “an employee subject to subdivision 11(E) of Wage Order No. 5 is still entitled to a 30-minute meal period even though that meal period may be on duty instead of off duty.” The Court explained an on-duty meal period as follows: “[A]n on-duty meal period is not the functional equivalent of no meal period at all. On-duty meal periods are an intermediate category requiring more of employees than off-duty meal periods but less of employees than their normal work.”

The Court found that, even if employees were not entitled to an uninterrupted meal period, they must at least be afforded 30 minutes of “limited duty enabling them to eat their meal in relative peace.”

Thus, where Wage Order No. 5 is at issue and no waiver is in place, subdivision 11(E) allows for on-duty meal periods, but requires such on-duty meal periods be at least 30 minutes in length.

Jackson Lewis P.C. © 2019

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Eve Tilley-Coulson Employment Attorney Jackson Lewis
Associate

Eve Tilley-Coulson is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Ms. Tilley-Coulson has experience with Title IX compliance alongside sexual harassment and discrimination in the workplace.

While attending law school, Ms. Tilley-Coulson was a Moot Court Board Member and the Notes Editor for the National Security Law Journal. Additionally, she was the President of both the Pro Bono Society and Mason...

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Principal

Hazel U. Poei is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. Her practice is focused on single-plaintiff, multi-plaintiff, and class action employment litigation in state and federal courts.

Ms. Poei has also handled arbitration proceedings and matters before administrative agencies such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. Ms. Poei has also prepared briefing to the United States Supreme Court.

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