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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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• Regarding On-Duty Meal, the understanding is that an employee

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• Regarding On-Duty Meal, the understanding is that an employee who agrees to “on-duty meal” can be request to work and eat at the sometime during his job duties.
o Our concern is if we ask the employee to not leave his post and continue his job duties and eat at his post during “on-duty meal”, that it may pose as some violation of labor laws.
o Of course during this “on-duty meal” period, he will be paid his normal wage.
• Also if the job duties require the employee to remain standing/guard, is there any requirement that he must be allowed to “Sit” to during his “On-Duty Meal” period or can we ask that he remain standing?

A non-exempt hourly employee must be provided at least one 30 minute meal period in every five hours of work. During the meal period, the employee must be relieved of all work. The employee can consent to eating while on duty, but the consent must be in writing, and the writing must state that the employee can revoke the consent at any time. If the employee consents, then the on-duty meal period must be paid, just as with any other work period.

The employee can consent to stand a post while eating, but once again, the employee can revoke the consent at any time, and the employer cannot discipline the employee for revoking the consent.

If the employer violates the above-described rules, then the employer must pay the employee for one additional hour of work for each violation. Consequently, if you want to dispense with all of the Labor Code rules, you can tell the employee that he/she must stand a post while eating, and then simply pay the employee for an additional hour of work. Example:

Employee works four hours, receives a half hour meal break, then works another four hours. If you dispense with the rules, and work the employee for eight and one half hours, then you would owe the employee for nine and one half hours of work.

See generally, IWC Wage Orders #1-#16 2001, Section 11; #17 2001, Section 9.

Hope this helps.
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