In this blog, we have previously covered the basic requirements for meal periods. Generally speaking, when an employee works for more than five hours per day, the employer must provide a meal break of at least 30 minutes. But sometimes an employee does work anyway, while they are supposed to be on their meal period – what happens?
During an employee’s required meal period, they must be relieved of all duties during the entirety of their 30-minute break. If they are not – if they are required to do at least some work within the designated time – it is considered an ‘on-duty’ meal. An important distinction arises when the employee decides to work during their meal period. If the employer makes the required efforts to give the employee a meal period, but the employee chooses to work anyway, it is not considered an on-duty meal for purposes of California wage and hour laws.
However, if the employee is required to take an on-duty meal, the employer must pay for it. The employer has to compensate the employee for a full hour of their regular pay, even when the meal period lasted only 30 minutes. This additional hour of pay does not count toward the employee’s overtime calculation.
There are circumstances where an on-duty meal is permitted, such as when the nature of the employee’s work prevents them from being relieved of all duties. An example might be that of a security guard who works alone and at a remote site. Whether an employee cannot be relieved of all duties is considered on a case-by-case basis, objectively. It is not an exception simply because the employer says the employee can’t be relieved of their duties. And regardless of the circumstances, on-duty meals are only permitted when both the employer and employee agree to them in writing.