ARE ON-DUTY MEAL BREAKS PERMITTED?
February 12, 2020
The law starts with the premise that employees must be fully relieved of all duties during the meal break. However, an employer may in limited circumstances provide on-duty meal breaks to its employees if the “nature of the work” prevents the employee from being relieved of all duty. This means that the employee will not be relieved of all duties during the meal break.
Simply because it is inconvenient to the employer does not justify an on-duty meal break. Only in extreme circumstances (like a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, or a security guard stationed alone at a remote site) where it is simply impossible for the employee to take a meal period because there is no one else available to relieve the employee are on-duty meal breaks appropriate.
It is the Employer’s burden of proof to establish that an on-duty meal break is justified
The determination that an on-duty meal break is lawful must be made on the basis of a multi-factor objective test. The factors that should be considered include:
- What is the type of work done by the employee;
- Can other employees provide relief to the employee in order to take an off-duty meal break;
- What are the potential consequences to the employer if the employee is provided an off-duty meal break;
- Is the employer able to forsee and prevent staffing issues to allow the employee to take an off-duty meal break, and;
- Whether the “work product or process” will be destroyed or damaged by relieving the employee of all duty.
[RULE]: The agreement for an on-duty meal break must be in writing and the written agreement must state that the employee may revoke the agreement at any time.
[RULE]: The employee must be paid his regular rate of pay for the on-duty meal break that is counted as hours worked.
DLSE Opinion. Letter No.
Meal periods: “On duty”