To demonstrate that the nature of a worker`s work prevents a worker from being exempted from any obligation, the employer must conduct an objective, multi-step review. Consideration should be given to: (1) the nature of the work; (2) the availability of other employees to lighten the burden on an employee during a meal; 3) the possible consequences for the employer if the worker is exempt from any obligation; 4. the employer`s ability to anticipate and mitigate these consequences, for example. B by planning work in a way that allows the worker to eat an out-of-service meal; and (5) if the product or workflow is damaged or destroyed by the worker`s relief from any obligation. In addition, other relevant factors may be considered, such as laws and industry regulations .B. Ultimately, it must be critically determined whether an employer can provide a properly timed meal, whether the facts and circumstances draw the conclusion that the nature of the work prevents the worker from being detached from any obligation. If an employer cannot do so, a regulated meal is against the law. The Industrial Welfare Commission (“IWC”) has ordered Regulation 5-2001, which regulates wages, hours and working conditions in the restaurant and fast food sectors, and reflects Labour Code 512: “No employer can employ a person for more than five hours without a meal of less than 30 minutes , unless a working time does not exceed six hours. The meal can be abolished by mutual consent of the meal. Employers and workers. Subdivision (A) of CBI Decision 5-2001 also states that “if the worker is not exempt from any obligation during a 30-minute meal, meal time is considered a meal of service and is counted as the time worked.” A “service” meal period is permitted only if the nature of the work prevents a worker from being exempted from any obligation and from agreeing to a paid meal in the workplace by written agreement between the parties. The written agreement stipulates that the worker can revoke the contract in writing at any time.
Unless the worker is relieved of any obligation during his thirty-minute meal, meal time is considered a “service” meal, which is counted as hours worked and must be compensated at the worker`s normal wage rate. A “service” meal period is only permitted if the type of work prevents a worker from being exempted from any obligation and agreeing to a meal period paid in the workplace by written agreement between the employer and the worker. The written agreement states that the worker may revoke the contract in writing at any time. Orders of CBI 1 -15, section 11, order 16, section 10. It is objective to check whether the nature of the work prevents a worker from being removed from any obligation. The employer and the worker cannot accept a service meal unless objective criteria prevent a worker from being exempted from any obligation because of the required work obligations. Some examples of jobs that fit this category are a single worker in a coffee kiosk, a single worker in a store for the night and a security guard who is alone parked in a secluded location. The court found that meals in use are an intermediate category that requires more workers than out-of-service meals, but fewer workers than their normal work.