The question presented is whether it is permissible for a non-exempt employee to waive a second meal break. Note: these rules do not apply to exempt employees under the category of executive, administrative or professional. This is written from the perspective of an HR consultant.
For example, the employee receives a 30-minute paid meal break before the 5th hour. But the employee continues to work for 12 hours in that particular day. Because the employee has been given the first meal break, can there be waiver of the second?
HR Departments know that California Labor Code Section 512 sets forth the general rule. An employee who works 8, 9 or 10 hours in a day, is entitled to just one 30-minute meal break. An employee who works 11 or 12 hours in the day is entitled to a second meal break unless that person waives it in writing. A person that works 13 or more hours in a particular day, must under all circumstances have a second meal break and it cannot be waived.
This is the general law of the State. However, there are special rules as to the pest-control industry. This is found in California Wage Order 5—2001. This Order applies to the “public housekeeping industry.” Under “Definitions” (P), this is defined as companies that “contract for development, maintenance, or cleaning of grounds; maintenance or cleaning up facilities and/or quarters of commercial units and living units”.
As to maintenance, this would most readily apply to handyman services or building contractors. For example, maintaining and repairing an HVAC system.
As for cleaning, this would most readily apply to maid or cleaning services, such as sweeping, vacuuming, mopping, sanitizing and other related cleaning services. The open question is whether this would apply to pest-control. Obviously eradicating, for example, rats, mice, ants and roaches would be a form of cleaning the premises. Because the penalties of not giving a meal break can be severe (one hour of wages per missed break, together with penalties and interest per Labor Code Section 226.7) an abundance of caution would classify pest-control companies under this wage order. In fact, the review of one of the attorney blogs who represents employees, emphatically states that it does apply to pest-control companies: (https://www.turleylawfirm.com/blog/pest-control-class-action-lawyer.cfm).
Section 11 “Meal Periods” of Wage Order 5 states as to the healthcare industry, employees who work more than eight hours in the day can waive in writing the second meal break. But that is the only waiver that is specified. Waivers for the pest-control industry are not mentioned.
Thus, this is subject to two interpretations:
- Because a special exception is not stated for the pest-control industry, there cannot be a waiver of that second meal break or
- The Wage Order does not state pest-control companies cannot give the waiver so it would be allowed as usual under Labor Code 512.
Recommendation:
Because of the vagaries of the law and the tendency of California courts to side for employees, be cautious here and lean toward being conservative.
Here are the examples:
Employee Works 8, 9 or 10 Hours in a Day: You can get away with one meal break.
Employee Works 12 or More Hours a Day on a Rush Job: Have the HR department give the employee the option of either taking a second 30-minute meal break or, if the employee would rather go home and not take a second break, give them one hour of pay at the normal rate. Once that is paid, there are no further penalties (Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) states: “If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided”).
As an HR professional, always keep these rules in mind. If you have any special fact pattern that does not fit nicely into these guidelines, feel free to give us a call.
National Lien Law can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.
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