Court Clarifies On-Duty Meal Provisions
Plaintiff of a 24-Hour Residential Care Facility Denied Class Action Over On-Duty Meal Period Allegations
A California Court of Appeal affirmed the denial of a motion for class certification filed by a former employee against her employer, a 24-hour health care facility, in Palacio v. Jan & Gail’s Care Homes, Inc. The Court found that a 24-hour health care facility employer is not obligated to inform its employees that they may have the right to revoke their on-duty meal agreement under the California Labor Code and Industrial Welfare Commission Wage Order No. 5-2001 (Wage Order 5) Section 11 (E) because Section 11(E) does not include a provision allowing employees to revoke the on-duty meal agreement. This decision is good news for the 24-hour residential care industry. (Section 11(E) covers employees of 24-hour residential care facilities for children under 18 years, non-emancipated foster children, the elderly, and blind or developmentally disabled individuals.)
Plaintiff Yvonne Palacio worked as a full-time licensed vocational nurse for Jan & Gail’s Care Homes, Inc. (Care Homes) from 1999 to 2013. Care Homes provides 24-hour residential care for developmentally disabled individuals, or clients. Care Homes requires direct care employees to work during their meal periods, known as an on-duty meal, and explains to its employees, at the time of hire, that the employee will eat lunch with clients during the client’s meal period, the employee will be paid for the lunch period, and the employee will be provided the same lunch as the client at no charge. In addition to this explanation, Care Homes also required employees to sign an agreement waiving their right to uninterrupted meal periods. Palacio signed this on-duty meal agreement at the time of hire in accordance with Section 11 (E) of Wage Order 5.
After her termination in October 2013, Palacio filed a class action lawsuit alleging she did not receive off-duty meal breaks or rest breaks as required by Labor Code Section 226.7 and Wage Order 5, and alleging a violation of the unfair business competition law.
In October 2014, the trial court denied plaintiff’s motion for class certification. Plaintiff sought certification on behalf of 102 current and former employees of Care Homes, who were deprived of uninterrupted meal periods under Labor Code Sections 226.7 and 512, and Wage Order 5.
Wage Order 5 Section 11 Meal Period Provision Relating to On-Duty Meals
The Court analyzed Section 11(A) and 11(E) of Wage Order 5 which relates to an employer’s duty to provide meal periods. Section 11(A) states the general rule that an employer must provide nonexempt employees who work at least five hours in a day with an unpaid meal period of at least 30 minutes. If an employee is not relieved of all duty during the 30 minute meal period, the meal period is considered an “on-duty” meal period and counted as time worked. The on-duty meal period is permitted only when 1) the nature of the work prevents an employee from being relieved of all duty and 2) the employer and employee have a written agreement agreeing to the on-duty meal period. Further, the on_duty meal agreement can be revoked by the employee, in writing, at any time.
In contrast, as the Court found, Section 11(E) is a specific provision applicable to 24-hour residential care facilities that allows employers to require employees to work on-duty meal periods, provided certain conditions are met: (1) it is necessary to meet regulatory or approved program standards; (2) the employee eats with residents during residents’ meals and the employer provides the same meal to the employee at no charge or the employee is in sole charge of the resident and, on the day shift, the employer provides the same meal to the employee at no charge. Under Section 11(E), an employee, except for the night shift, may have an off-duty meal period but must give the employer 30 days’ notice for each time the employee wants an off-duty meal period, and the employee is limited to one off-duty meal period every two weeks. Simply put, Section 11(E) does not include a provision allowing employees to revoke the on-duty meal agreement.
The Court noted that the word “require” under Section 11(E) would be rendered meaningless if employees could revoke the on-duty meal agreement at any time.
24-Hour Care Business Repercussions in Allowing Revocation of the On-Duty Meal Periods
The Court of Appeals noted that by law, Care Homes is required to provide 24-hour care to clients to protect them from illness, injury, fire, and other emergencies. If an employee were permitted to revoke the on-duty meal period requirement at any time and without advance notice, employers would have to alter scheduling practices to ensure the employee could exercise the right at any time, while ensuring the client still received continuous care. Further, Section 11(E) already contained a provision allowing an employee to take an off-duty meal period without revoking the on-duty meal period requirement.
This case serves as a reminder to employers to review their meal and rest break policies and procedures, and ensure, where applicable, that on-duty meal agreements and meal period waivers are in writing.