The Ambiguity of the On-Duty Meal Period

I often tell clients that ambiguity creates lawsuits.  It may be the ambiguity in the facts that allows a plaintiff to assert a particular claim.  Often it is the law itself that creates the ambiguity.  For example, when considering a whether a decision to terminate the employment of a worker, an business owner may be required to consider whether it has good cause.  California jury instructions define good cause as a decision “made in good faith and based on a fair and honest reason.”  What is fair to one is not fair to another.  Whether good faith is exercised is a matter of opinion.  And honesty depends on perception.  Thus, the law creates ambiguity in defining good cause.  That permits an employee to file a lawsuit when the employer contends it had sufficient cause to terminate the employment relationship. 


The On-Duty Meal Period rule creates ambiguity, and in so doing, engenders litigation, and can result in an unwarranted windfall for attorneys collecting their fees. 


The law states, “An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty ….”  The agreement must also be signed, and contain certain language.  So when does the nature of work prevent an employee from being relieved of duty in the context of a night worker, such as a security guard, hotel night auditor, a retail clerk, a fast food worker, or a night operator?  Those positions are often staffed by one person in the late night hours.  Employers recognize that there is little to do.  Moreover, it does not make economic sense for an employer in those industries to pay another employee so that (s)he can relieve the worker for a 30-minute period in the middle of the night.  Certainly, employees don’t want to be scheduled for such a shift. 


Welcome plaintiffs’ lawyers and the class action lawsuit.  Plaintiffs claim that the nature of the work does not require an on-duty meal period.  Rather, they contend that the necessity to stay on the job is the result of the employer’s miserly refusal to put two people on the job, or have a second employee relieve the worker for a meal period. 


This issue is has been raised with appellate courts twice in 2013, in Faulkinbury v. Boyd & Assoc., 216 Cal.App.4th 220 (2013), and in Abdullah v. U.S. Security Assoc., Inc., 2013 DJDAR 13151 (Sept. 27, 2013).  In both cases, the courts allowed the plaintiffs to move forward on a class action basis to determine whether or not the employer’s practice of providing on-duty meal period waivers to security guards violated the on-duty meal period rule.  In both cases, the employer routinely provided the waiver to the employee regardless of the employee’s assignment or other circumstances. 


Just today (October 7th) in the Eastern District of California, Fresno Division, security guards filed suit against AlliedBarton Security Security alleging, among other things, that they should have been given meal periods. 


So does the fact the employee works alone mean that the nature of the work prevents relief from duty?  Good question.  DLSE Opinion letters suggest that the isolated nature of an employee may justify an on-duty meal period.  DLSE Op. Ltrs 2002.09.04 and 1994.09.28.  However, that is just the DLSE opinion.  And until the issue is resolved by the courts, employers who schedule lone employees during the night hours (or perhaps even at other times), risk a lawsuit. 


What happens if an employee wins?  The worker is entitled to a premium penalty calculated at one hour at the hourly rate of pay for each meal period missed.  If no longer your employee, the worker is also entitled to a waiting period penalty, calculated at the daily wage for up to 30 days.  And the workers’ attorney is entitled to fees for prosecuting the case (and securing justice). 


Consider the minimum wage employee working five 8-hour days.  Over a period of four years, the employee would be entitled to the following: 


Premium penalty:  $8 x 5 days = $40 per week.  $40 x 52 weeks = $2,080.  $2,080 x 4 years = $8,320.   

Waiting period penalty:  $8 x 8 hours = $64.  $64 + $8 (premium pay) = $72.  $72 x 30 days = $2,160.

Total per employee:  $8,320 + $2,160 = $10,480. 


Before you write that check, don’t forget to include attorneys’ fees.