Most employees in California are entitled to a 30-minute uninterrupted meal break when the employee works at least 5 hours in a day. Employers that fail to provide the required meal break may be subject to a penalty equal to one hour at the employee’s regular rate of pay. When “the nature of the work prevents an employee from being relieved of all duty,” and when the employer and employee enter into a written on-duty meal agreement, the employer may be able to avoid the penalty. The on-duty meal agreement, however, must “state that the employee may, in writing, revoke the agreement at any time.”
In Palacio v. Jan & Gail’s Care Homes, Inc., an employee brought a class action alleging the employer failed to inform the employees that they had a right to revoke the company’s on-duty meal agreement. The court not only denied class certification, but also held the care homes do not have to tell employees they can revoke an on-duty meal agreement.
Care Homes do not have to tell employees they can revoke an on-duty meal agreement
But, why? If the regulations require on-duty meal agreements to contain a provision that the employee may revoke the agreement in writing, how come the court said the employer did not have to have such a provision in the agreement? Because a different part of the regulations specifically state:
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.
So, while most employers that can use on-duty meal agreements must inform employees of the right to revoke the on-duty meal agreement at any time, Care Homes do not have to tell employees they can revoke an on-duty meal agreement. Employers should also be aware that not ever employer can use an on-duty meal agreement.
If you have a question about your on-duty meal agreement, or whether such an agreement is appropriate in your workplace, contact an attorney familiar with on-duty meal agreements.