On-Duty Meal Agreement in Care Homes


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.


Employer Responsible for Attorneys’ Fees After Labor Commissioner Appeal

A California appellate court held an employer responsible for attorneys’ fees after Labor Commissioner appeal.

In Royal Pacific Funding Corporation v. Arneson, the employer appealed a $29,500.00 Labor Commissioner award.  After the employee retained an attorney for the appeal who notified the employer of the employee’s intent to add additional claims to the appeal, the employer dismissed the appeal.

The employee’s attorney filed a motion for attorneys’ fees, which the employer opposed.  The trial court denied all attorneys’ fees “on the theory that there must be a court award under Labor Code section 98.2 before a party can collect its fees.”  The appellate court reversed the decision and ordered the trial court to determine the employee’s reasonable attorneys’ fees.

Attorneys’ Fees After Labor Commissioner Appeal

Attorneys’ fees on appeal from a Labor Commissioner Order, Decision or Award are governed by Labor Code section 98.2, which provides:

If the party seeking review by filing an appeal to the municipal or superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.

In 2003, the legislature amended Labor Code section 98.2 to include the statement, ” An employee is successful if the court awards an amount greater than zero.”

Royal Pacific Funding argued that under Arias v. Kardoulias (2012) 207 Cal.App.4th 1429, the employee cannot recover attorneys’ fees because the court never determined the case on the merits, and therefore the employee was not “successful” on the appeal.  In Arias, the court denied an employer’s attorneys fees when the employer got an appeal dismissed on procedural grounds, because such a procedural dismissal could not be equated with a superior court determination of the merits. According to the appellate court, interpreting 98.2 to require a decision on the merits “turns the basic purpose of the 2003 amendment on its head.”

Employees and employers must think carefully before appealing a California Labor Commissioner decision.  Employees may be allowed to add additional claims on appeal, and the non-successful appellant may be obligated to pay the other side’s attorneys’ fees.  Before you appeal you Labor Commissioner case, contact an experienced attorney familiar with wage and hour claims.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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