Can your employer legally ask you to work during your meal break?

PHARMACISTS employed by Albertson’s LLC in California sued their employer for missed meal and rest periods. The employees alleged that the employer did not provide them off-duty meal breaks and off-duty rest breaks.

The employer argued that it did not have to provide off-duty meal breaks to the pharmacists because each of them signed an on-duty meal agreement. This meant that the employees can eat their lunch while continuing to be on-duty and ready to respond work demands. The only responsibility the employer claimed to have is to pay the employees for the 30-minute period as hours worked, which it did.

Under California law employers must provide their nonexempt employees meal periods and rest periods during the workday. This obligation is met if the employer “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” Employers who violate these requirements must pay premium wages of one additional hour at the employee’s regular rate.

An on-duty meal period in which an employee is not relieved of all duty is permitted when the “nature of the work” prevents such relief and the employee agrees to on-duty meal periods in a written agreement. This on-duty meal period shall count toward hours worked and must be paid.

When is an on-duty meal period agreement legal? The Division of Labor Standards Enforcement (DLSE) has provided the following factors to be considered in deciding whether a “nature of the work” exception applies:

The type of work;

The availability of other employees to provide relief to an employee during a meal period;

the potential consequences to the employer if the employee is relieved of all duty;

the ability of the employer to lessen negative consequences such as by scheduling the work to allow the employee to take an off-duty meal period; and

whether the work product will be destroyed or damaged by relieving the employee of all duty.

Courts, in applying the DLSE factors, have concluded that on-duty meal period agreements are valid only “where the work has some particular, external force that requires the employee to be on duty at all times,” or “where the employee is the sole employee of a particular employer.” The employer has the burden to establish facts that would justify an on-duty meal period.

As to rest breaks, an employer must authorize and permit all employees to take at least 10-minute rest breaks, for work of every our (4) hours or major fraction thereof. The ten minutes must be consecutive, and the rest period must be “duty-free.”  There is no nature of the work exception for an on-duty rest period.

In the foregoing case, the pharmacists argue that even though they signed an on-duty meal agreement, this agreement is invalid because the nature of the work they performed does not justify on-duty meal breaks. The nature of the work exception does not apply because there is no external force that prevents the employer from allowing off-duty meal breaks. The employees also argued that the employer could provide additional pharmacists to allow for off-duty meal breaks.

Rather than continue with litigation, the parties agreed to settle the case. The employer will pay the employees $1.6 million in damages.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]

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