©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 225 working shifts of more than fifteen hours, depending on the applicable Wage Order. (As to the meaning of “provide,” a word that does not appear in the Wage Orders, see § 7.8.5.) Section 11 applies only to nonexempt workers. A literal interpretation of Section 512, however, could extend a general meal-period entitlement to all employees, exempt as well as nonexempt. The DLSE noted this point in opining that exempt employees as well as nonexempt employees are entitled to meal periods.226 Yet the DLSE also acknowledged that “no premium pay may be imposed on an employer who fails to provide a meal period to an exempt employee.” 7.8.1 Record-keeping requirement Section 7 of the Wage Orders requires that the employer keep accurate information with respect to each required meal period.227 7.8.2 On-duty meal periods On-duty meal periods are permitted only if (1) the nature of the work prevents the employee from being relieved of all duty during the meal period, (2) the employer and employee have agreed in writing to the on-duty meal period, and (3) the agreement states that the employee may revoke the agreement, in writing, at any time.228 The DLSE has opined that the nature of the work permits on-duty meal periods only in very limited circumstances, such as where the employer’s operations make it virtually impossible to provide the employee with an off-duty meal period.229 To further limit the utility of the on-duty meal period, Court of Appeal decisions have indicated that the employer must determine an employee’s “nature of the work” under the circumstances pertaining to each assignment, instead of choosing, more efficiently, to have a blanket policy by which employees sign an on-duty meal period agreement in advance of particular assignments.230 A 2019 Court of Appeal decision, involving a permissible on-duty meal period in the public housekeeping industry, held that an employer must provide meal periods of at least 30 minutes regardless of whether they are on-duty or off-duty.231 The Court of Appeal thus rejected the argument of a 24-hour residential care facility that its on-duty meal periods need not be 30 minutes long. 7.8.3 Waiver of meal periods Employers cannot condition employment on waiver of a meal period. Waiver of first meal period. If the employee works no more than six hours in a day, then the employee’s duty to provide a meal period may be waived by “mutual consent” of employer and employee.232 The consent can be written or oral. The Court of Appeal has held that an employer can rely on a collective bargaining agreement as a means for employees to waive their first meal period for shifts that do not exceed six hours. No “magic words” are needed for the CBA to meet the requirement that a statutory right must be waived in clear and unmistakable language.233 Waiver of second meal period. An employee who works more than ten hours in a day, and who is thus entitled to two 30-minute meal periods, may waive the employee’s right and employer’s duty with respect to a second meal period, if the employee has not waived the first meal period. The waiver of the second meal period may be written or oral, and applies only for shifts of 12 or fewer hours.234 A special meal period waiver provision in IWC Wage Order 5, section 11(D), permits “employees in the health care industry” to waive one of their two meal periods, regardless of whether the employee works more than 12 hours, if the waiver is “documented in a written agreement that is voluntarily signed by both the employee and the
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