In a recent decision (Driscoll v. Granite Rock Company), the California Court of Appeal (finally) provides guidance to California employers about on duty meal periods.
In California, an on duty meal period is permissible only when:
- The nature of the work prevents an employee from being relieved of all duty and
- There is a written agreement between the employer and employee that an on-the-job paid meal period is agreed to.
For several years, the only guidance available regarding the nature of work exception was provided by the DLSE, who opined that the nature of work exception is a limited exception and is narrowly construed. In fact, the DLSE has said that it only applies in extreme circumstances (like a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and 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 available to relieve the employee (i.e. because the employee is working alone). However, with this new ruling, employers have more guidance on when an on duty meal period may be permissible.
In Driscoll, the plaintiffs were concrete mixer drivers who were provided the option of signing an on-duty meal period agreement, which they all signed. Prior to signing the agreement, the plaintiffs were also told that if they did not sign an On-Duty Meal Period Agreement and were asked to work through a meal, they would receive one hour of special pay. Finally, the plaintiffs were also notified of their right to a 30-minute, off-duty meal period.
The plaintiffs ultimately filed a class action lawsuit against their employer for failure to provide the required meal periods. The company’s asserted defense was the on duty meal period agreement.
The court found that the employer’s on-duty meal period agreements were lawful and specifically noted that the employer’s “policies regarding meal periods were particularly appropriate in the context of the ready mix concrete industry.”
The opinion used the Brinker decision’s discussion relating to industry practices to support this finding — specifically citing “What off-duty meal practices that will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.”
Relying on Brinker, the Court concluded that “the issue of different industry practices is a factual determination. Here, while on the job, mixer drivers manage a rolling drum of freshly batched concrete at any given time throughout their work day. When a driver is able to take a duty-free lunch period is dependent on the state of the concrete in his or her truck, and the nature of the construction job to which the driver is attending.”
Take Home for Employers
While this case does show support for on duty meal period agreements, employers are advised to proceed with caution before trying to implement on duty meal periods in their own workplace. The Court made it very clear that the permissibility of a particular on duty meal period arrangement is very fact-specific and is determined on a case-by-case basis. Before implementing an on duty meal period, it is recommended that employers carefully analyze the positions for which an on duty meal period is sought and seek the guidance of an attorney before taking any action.