Lunch Break violation?

[idea0001]

What is the name of your state (only U.S. law)? California

Our union contract says that employees must work straight 8 hour shifts and eat when they get a chance and only take as much time as it takes to eat and if the machines go down you must stop eating and fix the problem.
I am paraphrasing but that is the way it is understood.

Is this ok?

 

[pattytx]

A contract cannot make law go away.
http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

 

[racer72]

A contract cannot make law go away.
Division of Labor Standards Enforcement (DLSE)

But the law also says it's legal if the employee is paid during the lunch break.

Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay.

 

[pattytx]

True. And there is also a one hour pay "penalty" if the meal period is not provided.

 

[justalayman]

A contract cannot make law go away.
Division of Labor Standards Enforcement (DLSE)

I disagree:

the meal period may be waived by mutual consent of both the employer and employee.

a union contract is a mutual agreement of the rules contained within and as such, allows for the meal period to be waived. The employee has consented to abide by the contract by virtue of being a member of the union that has bargained on the behalf of the employees of this particular business.

I suspect the OP is in a situation where they run an automatic machine and are simply required to observe it for most of the time. They may be required to occasionally restock or remove manufactured parts from the machine.

If any of you know what an automatic screw machine is (and no, although it has been inferred I fit the bill, I am not talking about me), that would be an example of what I am speaking about.


I believe this removes the situation where the on-duty lunch period is required to meet an objective claim of the nature of the work preventing the employee from being relieved from all work related duties as well.

 

[pattytx]

But notice there are restrictions around when the meal period can be waived.

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 employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

Notice that the examples given are all a single employee working at a site.

 

[justalayman]

But notice there are restrictions around when the meal period can be waived.



Notice that the examples given are all a single employee working at a site.

this is listed seperately from the statement that the lunch period can be waived by mutual consent.

In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

the section you quoted follows, along with many other rules I believe addressess a situation where the waiving of the meal period may be predicated by the situation where it is necessary for the flow of the work processes. If I am reading it correctly, the statement I quoted stands alone and, simply, states that the meal period can be waived, with no underlying justifications other than mutual consent. If I am correct, by virtue of the CBA, the employee cannot revoke his consent unless he withdraws from the union, which of course, would result in his termination of employment due to the fact that California is not a right to work state.

as support for my position, here is the actual pertinent statute:

512. (a) An employer may not employ an employee for a work period
of more than five hours per day without providing the employee with a
meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee. An employer may not employ an employee for a work period of
more than 10 hours per day without providing the employee with a
second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee only
if the first meal period was not waived.
(b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.
(c) Subdivision (a) does not apply to an employee in the wholesale
baking industry who is subject to an Industrial Welfare Commission
wage order and who is covered by a valid collective bargaining
agreement that provides for a 35-hour workweek consisting of five
seven-hour days, payment of 1 and1/2 the regular rate of pay for time
worked in excess of seven hours per day, and a rest period of not
less than 10 minutes every two hours.
(d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Orders 11 and 12, is covered by a valid
collective bargaining agreement that provides for meal periods and
includes a monetary remedy if the employee does not receive a meal
period required by the agreement, then the terms, conditions, and
remedies of the agreement pertaining to meal periods apply in lieu of
the applicable provisions pertaining to meal periods of subdivision
(a) of this section, Section 226.7, and Industrial Welfare Commission
Wage Orders 11 and 12.


.

 

[idea0001]

wow, thanks for the advice but i am more confused than ever. maybe this situation has not been settled yet withen the law. I have always wondered about the way we do our lunch breaks. I know that because of our contract we only get paied time and a half for any hours worked over 8. even if we work a 16 hour shift. The law says that we should get paid double time for over 12. but the law specifically states that an union contract (CBA) can over rule the law. I do not see anywhere in the law where a lunch break can be over ruled by a CBA.

 

[racer72]

wow, thanks for the advice but i am more confused than ever. maybe this situation has not been settled yet withen the law. I have always wondered about the way we do our lunch breaks. I know that because of our contract we only get paied time and a half for any hours worked over 8. even if we work a 16 hour shift. The law says that we should get paid double time for over 12. but the law specifically states that an union contract (CBA) can over rule the law. I do not see anywhere in the law where a lunch break can be over ruled by a CBA.

The law states they don't have to give you a lunch break. As long as you are paid while you eat lunch, it is legal. Read the second quote in my first thread.

 

[justalayman]

I would suggest calling the California department of labor (I know, that is not what they call it out there but I can't remember what it is) and ask them. I feel quite sure that due to the union contract, they can have the situation you now have but, I believe patty disagrees.

give them a call and be nice enough to come back and tell us what they said.

 

[idea0001]

I like what patty said, if they want to work me through my lunch break then they must pay me an hour of extra pay.

justalayman: i have never signed an agreement with the co. that part of the law also says that the employee can recend the agreement at any time. it sounds like a personel thing not a union thing. Even though i belong to a union i have not given up my rights of protection that the law providees.

If the law was specific and allowed a CBA to over rule lunch break provisions like it does overtime pay provisions then i would say you are right. But for now i agree with patty.

 

[justalayman]

justalayman: i have never signed an agreement with the co. that part of the law also says that the employee can recend the agreement at any time. it sounds like a personel thing not a union thing. Even though i belong to a union i have not given up my rights of protection that the law providees.

If the law was specific and allowed a CBA to over rule lunch break provisions like it does overtime pay provisions then i would say you are right. But for now i agree with patty.

You can agree with her but I believe she is wrong, this time (she is usually right) I posted the germane law just as support for my position.

I believe you are misunderstanding the requirement to sign an agreement and your ability to not abide by the rules in place. If the contract states this is how it is, you have agreed to it simply by becoming a union member. You do not have to, or even have the option of signing any other agreement. As such, you have agreed to abide by the contract they negotiated on your behalf. As well, as I said, if you do not want to abide by the contract, you have that option but to do that, you will need to withdraw from the union and since California is not a right to work state, that means you lose your job.
I believe the law is specific:

work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee.

acceptance of the CBA by the union and the company is the mutual consent they require.

Even though i belong to a union i have not given up my rights of protection that the law providees.

You have agreed to abide by the union contract and if that contract states the lunches are as they are, then you have not given up any rights but you have agreed to waive the lunchtime rule.


anyway, call the Cali labor department and ask them. They are the ones that enforce the laws so they are going to provide the most accurate answer.

 

[pattytx]

I have no problem with the OP calling the Division of Labor Standards Enforcement. I might actually be wrong.