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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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We are considering a particular work arrangement and want to

Resolved Question:

We are considering a particular work arrangement and want to know if what we’re considering we can legally do. We have instituted an alternative workweek (4, 10 hour days). The employees are exciting about this and have all agreed to this alternative schedule, especially because they’ll only be working 9 hours each day but paid for 10 hours. Here’s why:
Their duties are such that they can’t leave their post. We’ve arranged for their two daily breaks to be covered (these are hourly employees), but we need them to work an “on duty” meal break, so they would be working during their “lunch hour”.
We would pay them as follows:
Pay for 8 hours work, plus the 9th hour which is a working lunch; then an additional hour’s pay for the inconvenience, for a total of 10 paid hours of pay per day, 4 days per week.
Can we offer such an arrangement as long as the employees sign an acknowledgement form that they have agreed to this schedule and that they can revoke it (with notice) at any time?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Joseph replied 5 years ago.
Hello and welcome to JustAnswer.

Unfortunately, employees cannot expilictly agree to waive their lunch periods in exchange for an hour's worth of wages, except in two circumstances, neither of which are met in your altnerative workweek:

1) When an employee’s work period for the day does not
exceed six hours, the meal period may be waived by mutual
consent of both the employer and employee. But neither the
employee nor the employer can be forced to waive the meal
period. For example, if the employee wants to waive the
meal period but the employer does not, then the meal period
cannot be waived.

2) When an employee works more than 10hours per day, the
second meal period may be waived if:
a) the employee works no more than 12 hours that
b) the employee and employer agree to waive the
second meal period and
c) the first meal period has not been waived.

However, as long as you pay the employee an hour's worth of wages for working through his or her lunch break, then you are satisfying your obligations under the California Labor Code.
Customer: replied 5 years ago.

In the 1st paragraoh of your answer,your answer is confusing. The employees are "agreeing" and not being forced to waive their lunch period, so we meet the terms of item #1. Secondly, they are working nine hours a day, not over ten, so item #2 doesn't apply.

The paragraph beginning with "however" seems to suggest that as long as we're paying the employee to work through their lunch break, which we are, then we are in compliance with the labor code. Correct?

Expert:  Joseph replied 5 years ago.
Yes, the employees are agreeing to wavie their lunch periods, but they are working more than 6 hours a day, so they cannot explicitly agree to waive their lunch periods.

However, as long as you are compensating the employees for their lunch breaks, yes, you are in accord with the California Labor Code.
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