My employee works part time, five six hour shifts per week. The employee comes in at 1230 and works until between 6 and 7 pm, leaving when the work is done. The work is the closing of the business so the employee cannot leave earlier unless the work is done, but could be scheduled to come in later. CA state law requires and I have told my employee to take a 30 minute lunch off the clock every shift. The employee has refused to do so, does not punch out and eats snacks in the office once or twice during each shift. The employee says they do not want to waste 30 minutes of their time at lunch. They do not want to come in earlier, stay later or work the same schedule but be paid for 30 minutes less per day. My concern is not that the employee eat while working. I would be fine with this but CA law prohibits it. I tell the employee that taking the lunch period is not optional but so far discipline short of firing the person has not changed the behavior. What are my obligations in CA to force this person to punch out for a lunch period?
From the California Department of Labor:
Q. If there is bona fide relief from all duty during a meal period and the employer relinquishes all control over the employee’s activities, but the employee then freely chooses to continue working, is the employer liable for meal period premium pay?
A. No, the employer would not be liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control (and no discouragement or coercion from the employer against taking the meal period). However, in this circumstance, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.
I couldn't find the original text cited by this article, but it appears that you can have the employee sign a one time agreement in writing that they are agreeing to have an on-duty meal period PROVIDED that your business requires the employee be active during his or her meal period:
- The employee voluntarily signs a one-time written agreement to work an on-duty meal period. The written agreement must state that the employee will be paid for his/her on-duty meal period. In addition, the written agreement must state that the agreement may be revoked by the employee at any time.
- The employee voluntarily verifies in writing that he/she agrees that the nature of the work prevented him/her from taking an off-duty meal period on the particular day.
- The employer verifies in writing that there were jobs in progress which prevented the employee from being relieved of all duty in order to take a 30 minute off-duty meal period.
Unfortunately, based on the information in your post, it does not appear that the nature of the work you are having the employee do allows this (does not appear that your business would be substantially affected by delaying completion of the work by 30 minutes & the employee does not appear to be 'manning a station' of any sort). The example provided by the DOL of someone who would meet the "on-duty lunch break eligibility criteria" was of someone who would be the sole employee manning a coffee shop with set hours.
So, to answer your question, your recourse seems to be to point to the law and tell them that unfortunately they have to take the lunch break or be fired.