On June 9, 2009, the Division of Labor Standards Enforcement (DLSE) issued an Opinion Letter that appears to relax the standard for satisfying the requirements for an on-duty meal period.

Under Wage Order 9-2001, subd. (11)(C), an on-duty meal period is lawful if all three of the following requirements are met: (1) the nature of the work prevents an employee from being relieved of all duty, (2) the employer and employee have agreed in writing to an on-the-job paid meal period, and (3) the written agreement states that the employee may, in writing, revoke the agreement at any time.

The DLSE affirmed that “the critical determination” is whether the employer can establish that the facts and circumstances in the matter point to the conclusion that the nature of the work prevents the employee from being relieved of all duty. Significantly, the DLSE disavowed in part a 2002 Opinion Letter that permitted “on duty” meal periods only when they are “virtually impossible to avoid,” finding that the express language of the wage order contains no such requirement and that there is no rational basis to impose such a “narrow, imprecise, and arbitrary standard.”

The DLSE also concluded that an employee whose working conditions prevent him or her from taking an off-duty meal period may enter into a “blanket” agreement for on-duty meal periods so long as the conditions necessary to establish that the nature of the employee’s work prevents the employee from being relieved of all duty are met for each applicable on-duty meal period taken. Therefore, the Opinion Letter clarifies that it is not necessary for the employer and employee to enter into separate agreements for each meal period.