An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

The following non-exhaustive factors should be considered when deciding whether the “nature of the work” exception applies to allow on duty meal periods for a specific job: a. The type of work, b. The availability of other employees to provide relief to an employee during a meal period, c. The potential consequences to the employer if the employee is relieved of all duty, d. The ability of the employer to anticipate and mitigate these consequences such as by scheduling the work in a manner that would allow the employee to take an off-duty meal period, and e. Whether the work product or process will be destroyed or damaged by relieving the employee of all duty. 591

LCW Practice Advisor

4. P REMIUM P AY F OR F AILURE T O P ROVIDE A M EAL P ERIOD If a school fails to provide an employee with a meal period, the school must pay the employee an additional amount for the missed meal break. The premium for a missed meal break is one additional hour of pay at the employee’s regular rate of pay for each workday where there is no meal period. 592 However, the premium is only to be paid per workday, not per meal period. Thus, if two meal periods should have been provided and the school does not provide any, the premium is one hour of pay. 593 The additional hour of pay is a premium wage intended to compensate employees, not a penalty. 594 A frequent problem for employers is an employee who does not want to take a meal break. If the school provides the employee with an opportunity to take a meal break, and the employee chooses not to take the meal break, the school will not be liable for the missed meal break penalty if the school “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and does not impede or discourage them from doing so.” 595 However, while a school is not required to police non-exempt employee meal breaks, the school may still be required to pay the employee for the extra time worked if the employer is aware that the employee worked through the meal break. 596

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 169