Ninth Circuit Upholds Certification of On-Duty Meal Period Class

The Ninth Circuit Court of Appeals decided that an employer's "on duty" meal period program for security guards was susceptible to class action treatment.

The big issue here is the Court's analysis of when on-duty meal periods are authorized under California law.  The general rule is that unpaid meal periods are compliant with California law only if the employee is relieved of all duty. There is an exception:

An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

Although on duty meal periods are paid as hours worked, the missed meal period penalty / premium does not apply.

When does the "nature of the work" prevent an employee from being relieved of all duty?  The Court of Appeals noted that the California courts have not explored this issue in any detail. A federal court is supposed to predict how the California Supreme Court would decide the issue.  This Court did not mention that requirement.  Nor did the Court certify the question to the California Supreme Court, as it has the power to do. Instead, the Court primarily reviewed the DLSE opinion letters on the subject of the "nature of the work" exception.

we can characterize the instances in which DLSE has found that the “nature of the work” exception applies into  two categories: (1) where the work has some particular, external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer.

The Court also relied on a post-Brinker Court of Appeal opinion involving security guards, where the state court upheld class certification.  That case, Faulkinbury v. Boyd & Assocs.,  216 Cal. App. 4th 220 (2013), involved security guards too.  But the Court of Appeal in Faulkinbury was simply concerned with whether the employees' claims should proceed as a class based on Boyd's policy, not a definitive evaluation of the on-duty meal period law.

This Abdullah case also involved security guards assigned to work at schools, hospitals, etc.  In many instances, only one guard was assigned to do the work at the particular site.  The Court of Appeals rejected the employer's argument that a lone security guard automatically is entitled to an on-duty meal period - because s/he is ALONE at the job site (at least the only U.S. Security Associates employee):

First, as the district court explained, the DLSE letters make clear that “the showing necessary to establish the ‘nature of the work’exception is a high one.” In order to make such a showing, USSA had to demonstrate not just that its employees’ duties
varied, but that they varied to an extent that some posts would qualify for the “nature of the work” exception, while others would not. It failed to do so. Indeed, USSA’s sole explanation for why it requires on-duty meal periods is that its guards are staffed at single-guard locations. It does not argue that any particular posts would qualify for the “nature of the work” exception absent the single-guard staffing model.

Then the Court appeared to say that the employer must prove that the tasks themselves prevent the employee from taking a meal period even when the employee works alone:

Consider, for example, the illustrative list of duties that USSA has provided to demonstrate the variety of its employees duties:  [T]he duties performed by security guards include patrolling parking lots; checking receipts; signing in and out trucks; setting up  school parking lots and assisting with student drop-offs and pick-ups; inspecting vehicles; restraining unruly patients; escorting dead bodies; checking the inventory, mileage, and temperature of trucks; working undercover to catch shoplifters; monitoring psychiatric patients; checking in employees and answering phones at a front desk; performing surveillance; and enforcing hotel quiet hours.

These duties are undoubtedly distinct from one another, but the only reason any of them “prevent” the employee from taking a meal period is because USSA has chosen to adopt a single-guard staffing model. See Cal. Code Regs., tit. 8, § 11040, subd. 11(A) (stating that an “on-duty” meal periodis permitted “only when the nature of the work prevents an employee from being relieved of all duty” (emphasis added)).

The Court  seems to be saying that the job's tasks themselves must preclude an off-duty meal, even if the employee works alone.  If that is the Court's position, then in many cases employers will have to hire people for the sole purpose of relieving employees who work alone, or pay the meal period premiums associated with on-duty meal periods.

That said, the Court and DLSE have noted there are jobs involving solo employees that could qualify for on-duty meal periods, such as a late-night gas station where there were no other workers, or a truck driver carrying dangerous materials.

So, if California courts decide to adopt the reasoning of this case, it could further narrow the on-duty meal period exception. Additionally, employers attempting to secure on-duty meal period waivers must carefully consider the employee's job duties.  If the duties "always" prevent an off duty lunch because the job is inherently too dangerous or isolated, fine.  But if the employee's duties vary such that the employee could take an off-duty meal on some days but not others, that on duty agreement could be held invalid if it precludes employees from taking off duty meal periods when they can do so.

The case is Abdullah v. U.S. Security Associates, Inc. and the opinion is here.