CACI No. 2771. Affirmative Defense - Meal Breaks - Written Consent to On-Duty Meal Breaks

Judicial Council of California Civil Jury Instructions (2024 edition)

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2771.Affirmative Defense - Meal Breaks - Written Consent to On-
Duty Meal Breaks
[Name of defendant] claims that there was no meal break violation
because [name of plaintiff] agreed in writing to be on duty during meal
breaks. To succeed on this defense, [name of defendant] must prove the
1. That [name of plaintiff] worked more than [five/six] hours in a
2. That the nature of [name of plaintiff]’s work prevents [him/her/
nonbinary pronoun] from being relieved of all duty during meal
3. That [name of plaintiff] and [name of defendant] freely, knowingly,
and mutually consented in writing to on-duty meal breaks during
which [he/she/nonbinary pronoun] would not be relieved of all
duties; [and]
[4. That [name of plaintiff] has not revoked in writing
[his/her/nonbinary pronoun] written consent; and]
5. That [name of defendant] paid [name of plaintiff] at
[his/her/nonbinary pronoun] regular rate of pay during the on-duty
meal breaks.
New December 2022
Directions for Use
This instruction sets forth an employers affirmative defense of a written waiver of
off-duty meal breaks. Give this instruction only if the defendant claims that the
plaintiff freely entered into a written agreement for on-duty meal breaks. (See, e.g.,
Cal. Code Regs., tit. 8, § 11040, subd. 11(A).)
Persons employed in the motion picture industry are entitled to a meal break after
six hours of work (Wage Order 12-2001), rather than the five-hour rule applicable in
other industries. Select the appropriate option in element 1 depending on the
industry’s applicable wage order.
Omit optional element 4 if the plaintiff’s revocation of written consent is not at
For an instruction on waiver of meal breaks by mutual consent, see CACI No. 2770,
Affırmative Defense - Meal Breaks - Waiver by Mutual Consent.
Sources and Authority
Meal Periods. Labor Code section 512.
Meal Periods. Cal. Code Regs., tit. 8, §§ 11010-11030, 11060--11110, 11150,
11(C), 11040-11050 & 11130-11140, 11(A), § 11120, 11(B), § 11160,
“Unless the employee is relieved of all duty during a 30 minute meal period, the
meal period shall be considered an ‘on duty’ meal period and counted as time
worked. 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 parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time.” (Cal. Code Regs., tit. 8, § 11010, subd. 11(C).)
“[The on-duty meal period] exception is exceedingly narrow, applying only when
(1) ‘the nature of the work prevents an employee from being relieved of all
duty’ and (2) the employer and employee have agreed, in writing, to the on-duty
meal period. Even then, the employee retains the right to ‘revoke the agreement
at any time.’ These narrow terms undercut the argument that the provision
creates, by implication, a broad rest period exception permitting employers to
unilaterally require that employees take on-duty rest breaks without receiving
additional compensation.” (Augustus v. ABM Security Services, Inc. (2016) 2
Cal.5th 257, 266-267 [211 Cal.Rptr.3d 634, 385 P.3d 823], original italics,
internal citation omitted.)
“An on-duty meal period is one in which an employee is not ‘relieved of all
duty’ for the entire 30-minute period.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1035 [139 Cal.Rptr.3d 315, 273 P.3d 513].)
“[A]bsent a waiver, the statute’s plain terms required [the defendant] to provide
‘a meal period’ - whether off-duty or on-duty - of at least 30 minutes any time
an employee worked at least five hours.” (L’Chaim House, Inc. v. Department of
Industrial Relations (2019) 38 Cal.App.5th 141, 149 [250 Cal.Rptr.3d 413].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390, 391
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 9, Wage and Hour Class Claims, § 9.02
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.14, 250.34 (Matthew Bender)
2772-2774. Reserved for Future Use

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