Security Guards, Night Auditors and Swing or Night Shift Workers

Many industries employ workers to perform duties during the night, when much of the world is sleeping.  Take for example mini-marts, gas stations, some fast food restaurants, hotels and security guard companies.  During the night hours business is usually slow and often the company employs only one worker to cover the facility. 

The overnight nature of the work poses a challenge to California employers.  The state generally requires employers to provide unpaid meal periods to its employees.  The employee must be relieved of all duties and (s)he is entitled to leave the premises.  In the event an employee is not provided a meal period, the employer is liable for a "premium" calculated at one hour of the employee's hourly rate of pay. 

An exemption from the premium is available if due to the nature of the work the employee cannot be relieved of all duty.  Then, if the parties sign a written agreement to this effect, an on-duty meal period is permissible and no premium is imposed. 

The issue with the night worker is always whether the nature of the work prevents the employee from taking a meal period.  Most of the time, the business does not employ a second person.  That is not cost-effective.  With security guards, the job site might be a long distance from another employee making "breaking" the employee for a meal impossible.  Nor is it feasible for most businesses to hire a person to work 30 or 60 minutes while the night worker is taking a meal period. 

However, plaintiffs' lawyers will argue that it is not the nature of the work that makes it impossible for the worker to take a meal period, it is the employer's unwillingness to hire two persons to staff the facility. 

A second, related question is whether an employee working alone at a facility is permitted to take a rest period.  This is not the same issue as the meal period issue.  There are several interesting distinctions.  For example, an employer can compel an employee to stay on the premises during the rest period.  Second, a rest period is 10 minutes in duration.  During a night shift an employee can often go 10 minutes without customers or responsibilities.  Third, there is no concept of an on-duty rest period like there is for meal periods. 

Many lawyers are discussing the case of Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, but focusing on the issue of class action certification.  The Court held that in this case security guards could move forward with a class action on multiple issues, including whether or not they were unlawfully prevented to take a meal period by the company's policy of requiring all security guards to sign an on-duty meal period waiver. 

The Court said that it was not ruling on the legality of requiring the guards to sign an on-duty meal period.  It's ruling was limited to the issue of the class action. 

Employers should keep this case on their radar.  It could be the first appellate court to rule on the issue of the validity of an on-duty meal period.  If an on-duty meal period is not valid in this case, you can expect to see a rush of litigation in every industry that employs night workers. 

Faulkinbury is a big case, not as much for the issue of class action status, but for the issue whether an on-duty meal period is appropriate in those situations where the night employee works alone and cannot be relieved by a co-worker. 

Stay tuned.