Can Employees Choose to Work Instead of Taking A Meal Break?
The answer is “yes” but (there’s always a but!), under limited circumstances. As you may recall, the California Supreme Court is currently considering the scope of employer meal break obligations under state law. The question before the court is whether employers must only provide a meal break, or “ensure” that employees take meal breaks. There is no indication of when the court will be making its decision.
The issue that normally presents itself is that an employee makes a request to work through lunch so that they can leave early. If this is an isolated request I do not see a problem. Making it a normal routine would be a potential liability concern. There are two exceptions.
1. Meal Break Waivers-A non-exempt employee who works a total of six hours or less in a day can waive taking a meal break. An employee who works more than ten hours in a day but less than twelve hours can waive the second meal break. We strongly recommend that such waivers be in writing and signed by the employee. It should be noted that you only have to have the waiver signed one time. Healthcare employees can waive a meal break if they work more than eight hours in a day and sign a revocable written waiver.
2. On-Duty Meal Periods– If the nature of an employee’s work prevents the employee from being relieved of all duties for an uninterrupted 30-minute meal period, the employee can agree to work an on-duty meal period without being owed missed meal period premium pay (this only applies to certain industries, Security Guard companies, Healthcare etc.). Keep in mind the time employee works during an on-duty meal period is counted as hours worked for the purposes of calculating overtime.
In summary, for an on-duty meal period to be valid it must:
1. Be in writing
2. Be voluntarily signed by the employee before working any on-duty meal period; and
3. must state that the employee can revoke the agreement at any time.
If you have any questions about any of the above please give us a call. The waivers must be done correctly.
