Filed 7/31/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION ONE


 L’CHAIM HOUSE, INC. et al.,
          Plaintiffs and Appellants,
                                                   A152975
 v.
 DIVISION OF LABOR STANDARDS                       (Sonoma County
 ENFORCEMENT,                                      Super. Ct. No. SCV-259820)
          Defendant and Respondent.


        Plaintiffs L’Chaim House, Inc. and its owner, Cary Kopstein (collectively,
L’Chaim), operate residential care homes for seniors. L’Chaim was cited for wage and
hour violations by defendant Division of Labor Standards Enforcement (DLSE). After an
unsuccessful administrative appeal, L’Chaim initiated this action by filing a petition for a
writ of administrative mandamus under Code of Civil Procedure section 1094.5, which
the trial court denied.
        On appeal, L’Chaim claims that under the applicable Industrial Welfare
Commission (IWC) wage order, it may require its employees to work “on-duty” meal
periods that, unlike periods when employees are “relieved of all duty,” do not need to be
at least 30 minutes long. (IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050)
(hereafter Wage Order No. 5), subd. (11)(A), (E).) We hold that, to the contrary,
L’Chaim must provide meal periods of at least 30 minutes, regardless of whether they are
on-duty or off-duty, under Wage Order No. 5 and the applicable statutory law. We
therefore affirm.




                                             1
                                           I.
                                 FACTUAL AND PROCEDURAL
                                      BACKGROUND
       Because this appeal presents a pure question of law, we need not discuss the
underlying facts in detail. Briefly, in February 2016, the DLSE issued wage and penalty
citations to L’Chaim, which operates two 24-hour residential care homes in San Rafael
for seniors. The citations were for, among other things, failing to provide 30-minute
meal periods under Wage Order No. 5, which governs the public housekeeping industry.
A hearing officer affirmed the citations, which included a total of approximately $89,000
in premium-pay and penalty assessments under Labor Code sections 226.7 and 558 for
failure to provide 30-minute meal periods to employees. 1
       In December 2016, L’Chaim filed the instant action, challenging only the
conclusion that it failed to provide meal periods as required. The following September,
the trial court denied the writ petition. It concluded that even though L’Chaim was
authorized to provide on-duty, as opposed to off-duty, meal periods to its employees,
those meal periods still had to be at least 30 minutes long.
                                              II.
                                         DISCUSSION
       A.       The Standard of Review and Governing Law.
       A writ of administrative mandamus may be sought on the basis that the agency
engaged in a “prejudicial abuse of discretion. Abuse of discretion is established if the
[agency] has not proceeded in the manner required by law.” (Code Civ. Proc., § 1094.5,
subd. (b).) “Generally, whether an agency has proceeded lawfully is a legal question that
the trial court and appellate court both review de novo.” (Stewart Enterprises, Inc. v.
City of Oakland (2016) 248 Cal.App.4th 410, 420.) We agree with the parties that
L’Chaim’s sole claim—that the on-duty meal breaks authorized by subdivision 11(E) of
Wage Order No. 5 do not need to be least 30 minutes long—presents an issue of statutory




       1
           All further statutory references are to the Labor Code unless otherwise noted.

                                               2
interpretation that we review de novo. (See Robertson v. Health Net of California, Inc.
(2005) 132 Cal.App.4th 1419, 1425.)
       “We apply the usual rules of statutory interpretation to the Labor Code, beginning
with and focusing on the text as the best indicator of legislative purpose. [Citation.] ‘[I]n
light of the remedial nature of the legislative enactments authorizing the regulation of
wages, hours[,] and working conditions for the protection and benefit of employees, the
statutory provisions are to be liberally construed with an eye to promoting such
protection.’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004,
1026–1027 (Brinker).) Similarly, when, as here, “a wage order’s validity and application
are conceded and the question is only one of interpretation, the usual rules of statutory
interpretation apply,” and the wage order “must be interpreted in the manner that best
effectuates [the] . . . intent [to protect workers].” (Id. at p. 1027.) “To the extent a wage
order and a statute overlap, we will seek to harmonize them, as we would with any two
statutes.” (Ibid.)
       Wage Order No. 5, subdivision 11(A) provides, “No employer shall employ any
person for a work period of more than five (5) hours without a meal period of not less
than 30 minutes, except that when a work period of not more than six (6) hours will
complete the day’s work the meal period may be waived by mutual consent of the
employer and the employee. 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.”
       Subdivision 11(E) of Wage Order No. 5 creates an exception for “employees of 24
hour residential care facilities for the elderly,” which the DLSE concedes applies to
L’Chaim’s employees. Under that provision, such employees “may be required to work
on-duty meal periods without penalty when necessary to meet regulatory or approved


                                              3
program standards and one of the following two conditions is met: [¶] (1) [¶] (a) The
residential care employee[] eats with residents during residents’ meals and the employer
provides the same meal at no charge to the employee; or [¶] (b) The employee is in sole
charge of the resident(s) and, on the day shift, the employer provides a meal at no charge
to the employee.” (Wage Order No. 5, subd. 11(E).)
       In 1999, the Legislature regulated meal periods for the first time by passing
section 512, which “made meal periods a statutory as well as a wage order obligation.”
(Brinker, supra, 53 Cal.4th at pp. 1036–1037.) Before that, “an employer’s meal periods
were governed solely by the language of the IWC’s wage orders.” (Id. at p. 1034.) “The
declared intent in enacting section 512,” which was done in response to the IWC’s
“weakening of employee protections” in certain wage orders, “was not to revise existing
meal period rules but to codify them in part.” (Id. at pp. 1037–1038.) Under the statute,
“[a]n employer shall 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.”
(§ 512, subd. (a).) 2
       B.      The On-duty Meal Periods Authorized by Subdivision 11(E) Must Be at
               Least 30 Minutes Long.
       L’Chaim’s claim that it does not have to provide on-duty meal periods that are 30
minutes long rests on a fundamental misreading of subdivision 11 of Wage Order No. 5.
As noted above, subdivision 11(A) states that “[u]nless 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.” L’Chaim interprets this language to
“contemplate[] instances where an employee’s meal period may be less than 30 minutes,”
in which case subdivision 11(A) “does not extend the meal period until a full


       2
        Effective January 1, 2019, the word “shall” was substituted for “may” (Stats.
2018, ch. 48, § 1), but the quoted language has otherwise remained the same since 1999.
(See Stats. 1999, ch. 134, § 6; Brinker, supra, 53 Cal.4th at p. 1037, fn. 16.)

                                             4
uninterrupted 30 minutes is realized” or “require a tolling of the 30-minute meal period
while the employee carries out some of his or her duties.” We do not follow this
reasoning. If an employee is entitled to an off-duty meal period of 30 minutes, yet work
obligations intrude on a portion of that time, the off-duty period is converted to an on-
duty period—no matter how small the portion of the period that work intruded upon—
and the employee is paid for the entire period. There is no suggestion that once work
interrupts an employee’s meal period, the period simply ends even if 30 minutes have not
yet passed.
       Thus, we cannot agree with L’Chaim that the trial court’s determination that its
employees are entitled to an on-duty meal period of at least 30 minutes equates to an
“imputation of a 30-minute uninterrupted meal period into an ‘on-duty’ meal period.”
The court’s order says no such thing. Instead, it merely concludes that an employee
subject to subdivision 11(E) is still entitled to a 30-minute meal period even though that
meal period may be on-duty instead of off-duty.
       What L’Chaim misunderstands is that an on-duty meal period is not the functional
equivalent of no meal period at all. On-duty meal periods are an intermediate category
requiring more of employees than off-duty meal periods but less of employees than their
normal work. Recognizing this, the trial court stated that even if L’Chaim’s employees
were not entitled to “an uninterrupted meal period,” they “may at least be afforded 30[]
minutes of limited duty enabling them to eat their meal in relative peace.” L’Chaim
attacks the notion that its “employees may be given ‘limited duty’ while on a meal break”
as creating “several absurd consequences.” According to L’Chaim, because employees
do not clock out for on-duty meal periods, there is no way to track the length of those
periods. In addition, “the creation of a new ‘limited duty’ requirement to [Wage Order
No. 5, subdivision 11(E)] would force employers to delineate which tasks an employee is
expected to perform during his or her on-duty meal period,” which L’Chaim claims
“would be difficult and even potentially dangerous for the residents.”
       But any such practical challenges are inherent in providing “on-duty meal periods”
at all, not just periods of a particular length. Moreover, the question presented here is


                                              5
whether an on-duty meal period must be at least 30 minutes long, not how courts might
evaluate the adequacy of the period under different factual scenarios. Thus, while we do
not address what constitutes an acceptable on-duty meal period in the context of this case,
what we can say is that employees of 24-hour residential care facilities for seniors are
unambiguously entitled to “on-duty meal periods” under subdivision 11(E). L’Chaim’s
interpretation would effectively read that requirement out of Wage Order No. 5.
       L’Chaim also seizes on broad language in an appellate decision and a DLSE
opinion letter that it claims supports its position. In Palacio v. Jan & Gail’s Care Homes,
Inc. (2015) 242 Cal.App.4th 1133 (Palacio), the Fifth District Court of Appeal
considered the interplay between subdivisions 11(A) and 11(E). Subdivision 11(A) is a
general provision that allows employers and employees to agree that meal periods will be
on-duty and to revoke these voluntary agreements at any time. (Palacio, at p. 1139.)
Subdivision 11(E), in contrast, “enables employers to require employees to work on-duty
meal periods, provided certain conditions are met.” (Ibid.) The Palacio employer
required its employees to work on-duty meal periods under subdivision 11(E) and to sign
agreements waiving their right to off-duty meal periods. Palacio held that the employer
“was not obligated to comply with subdivision 11(A)” by including a provision in the
agreements giving the employees the right to revoke them. (Palacio, at pp. 1140–1141.)
Similarly, in an October 17, 2016 opinion letter, the DLSE responded to the question
“whether a meal period waiver is required to be signed by employees exempt from duty
free meal periods under [subdivision 11(E)]” by reference to Palacio. The letter
characterized Palacio as holding that the right-to-revoke language is not required in such
a waiver “because if a care home meets the requirements of [subdivision] 11(E) it does
not also need to comply with [subdivision] 11(A).”
       L’Chaim argues that the statements in Palacio and the DLSE opinion letter
establish that an employer whose employees are covered by Wage Order No. 5,
subdivision 11(E) are exempt from complying with any part of subdivision 11(A),
including the requirement that meal periods be at least 30 minutes long. We would have
to read these statements wholly divorced from their context to accept L’Chaim’s


                                             6
interpretation, and we decline to do so. Subdivision 11(E) creates an exception to
subdivision 11(A) by authorizing an employer to mandate on-duty meal periods without
the need to reach a revocable waiver agreement with its employees, and Palacio
addressed only the portion of subdivision 11(A) that subdivision 11(E) purports to affect,
the portion governing waivers of off-duty meal periods. (See Palacio, supra,
242 Cal.App.4th at p. 1139.) It is axiomatic that “ ‘cases are not authority for
propositions not considered.’ ” (City of Bellflower v. Cohen (2016) 245 Cal.App.4th 438,
452.) The only reasonable reading of Palacio’s statement is that if a care home meets the
requirements of subdivision 11(E) it does not also need to comply with the portion of
subdivision 11(A) governing waivers of off-duty meal periods, not subdivision 11(A) as a
whole.
         Finally, even if any doubt remained, we agree with the DLSE that section 512
compels the same conclusion. Under that statute, which L’Chaim does not address in its
briefing, an employer is prohibited from “employ[ing] 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,” unless the employee works no more than six hours in a day and
agrees to waive the meal period. (§ 512, subd. (a).) Although section 512 contains
exceptions for workers in several industries, none of them apply here. And although the
IWC has broad authority to “adopt or amend working condition orders with respect to . . .
meal periods . . . for any workers in California consistent with the health and welfare of
those workers,” at all relevant times—including when subdivision 11(E) was added to
Wage Order No. 5—that authority has been specifically limited “as provided in
Section 512.” (§ 516, subd. (a); see Gerard v. Orange Coast Memorial Medical Center
(2018) 6 Cal.5th 443, 454–455 [post-2000, IWC cannot “deviate from the meal period
requirements of section 512”]; Official Notice, Amends. to §§ 3, 11, 12 of Wage Order
No. 5 (Oct. 29, 2001).) Thus, absent a waiver, the statute’s plain terms required L’Chaim
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.



                                             7
                                  III.
                              DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.




                                    8
                                            _________________________
                                            Humes, P. J.




WE CONCUR:




_________________________
Margulies, J.




_________________________
Banke, J.




L’Chaim House et al. v. Department of Labor Standards Enforcement A152975




                                        9
                              CONCURRENCE OF BANKE, J.
       Although I concur in the majority’s opinion, I write separately to emphasize what
an exceptionally poor vehicle this case is to discuss the parameters of a lawful “on-duty”
meal period and to underscore the narrowness of our holding.
       First, the employer never raised, until well after the eleventh hour, any exception
to the general rule that employees must be provided unpaid, 30-minute “off-duty” meal
periods every five hours. 1 (See Gerard, supra, 6 Cal.5th at p. 446 [“Labor Code
generally provides that employees who work more than five hours must be provided with
a 30-minute meal period”].) The employer raised no exception during the months-long
audit, and the citation issued by the Division of Labor Standards Enforcement (DLSE)
alleged violations of the general rule, i.e., failing to provide 30-minute “off-duty” meal
periods. The employer invoked no exception in response, and instead, requested a
hearing. The DLSE then tried the case as one where employees were entitled to, but not
provided with, uninterrupted 30-minute “off-duty” meal periods, during which they were
free to leave the premises. (See Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1035–1040 (Brinker).) The DLSE thus made a well-focused evidentiary
presentation that, during the audit period, the employer had no meal period policies at all,


       1
          DLSE wage order No. 5-2001 (Wage Order No. 5) provides three exceptions.
The first, set forth in subdivision (11)(A), applies when “the nature of the work prevents
an employee from being relieved of all duty,” the employee agrees in writing to “on-the-
job” paid meal periods, and the agreement specifies the employee can revoke the
agreement at anytime. (See, e.g., Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th
926, 942–943 (Lubin) [discussing the “nature of the work exception”].) The second
exception, set forth in Wage Order No. 5, subdivision (11)(D), applies to health care
workers who work longer than an eight-hour shift and allows these employees to “waive”
their “right to one of their two meal periods,” if they do so in writing and the employee
can revoke the waiver on one day’s notice. (See, e.g., Gerard v. Orange Coast Memorial
Medical Center (2018) 6 Cal.5th 443 (Gerard) [upholding waiver exception].) The third
exception, set forth in Wage Order No. 5, subdivision (11)(E), and the exception at issue
here, applies to employees of certain 24 hour residential care facilities, including for
seniors, and has a number of requirements as discussed in subsequent paragraphs. (See,
e.g., Palacio v. Jan & Gail’s Care Homes, Inc. (2015) 242 Cal.App.4th 1133, 1138–1141
(Palacio) [discussing 24 hour residential care facility exception].)

                                             1
employees did not have uninterrupted half hour meal periods, and employees were not
free to leave the premises during meal periods. The employer’s defense was not that any
exception to the general rule applied. Rather, the employer maintained employees could,
in fact, take 30-minute “off-duty” meal periods and the fact they did not avail themselves
of the opportunity could not, under Brinker, subject the employer to liability.
Accordingly, the employer focused its evidentiary presentation on trying to undermine
the testimony of the two employees who had been called as DLSE witnesses, by calling
three other employees who claimed they had ample time to eat and rest, and they could
have departed the premises had they desired or needed to do so. In other words, the
employer’s defense—that, in fact, employees could take uninterrupted 30-minute “off-
duty” meal periods—was wholly inconsistent with the invocation of any exception to the
general rule.
       It was not until a month after the hearing had concluded and the matter submitted
for decision, that the employer first raised the 24 hour residential care facility exception,
citing to Palacio (which had been decided more than nine months earlier). In a letter to
the hearing officer, the employer asked to “re-open[]” the “evidence.” After the
employer sent a second such letter, the DLSE opposed the request to reopen as being too
late and not warranted by the evidence. Given this chronology of events, the DLSE
agreed at oral argument the judgment could theoretically be affirmed on the ground of
forfeiture.
       Second, since this case was prosecuted and tried as a straightforward “Brinker”
case—i.e., that the employees were entitled to, but not provided with, uninterrupted, 30-
minute “off-duty” meal periods, during which they were free to leave the premises—and
was defended against as such, the employer made no affirmative showing that the 24
hour residential care facility exception applied. (See Lubin, supra, 5 Cal.App.5th at
p. 943 [“burden is on the employer to plead and prove facts justifying on-duty meal
periods”].) Nor did the hearing officer grant the employer’s belated request to reopen the
hearing to present additional evidence. As a consequence, the evidence does not


                                              2
conclusively establish that this exception even applies, let alone suffice for any
discussion about the particulars of a lawful “on-duty” meal period under this exception.
       The employer belatedly urged in the administrative proceedings, and has
maintained in these administrative mandamus proceedings, that the record establishes the
24 hour residential care facility exception applies because employees could, without
charge, eat the same food they prepared for residents and some employees did so.
However, this exception has additional substantive requirements, the first of which is that
“on-duty” meal periods are “necessary to meet regulatory or approved program
standards.” (Wage Order No. 5, subd. (11)(E).) This threshold requirement is directly at
odds, however, with the defense the employer presented—that employees could, in fact,
take uninterrupted, 30-minute “off-duty” meal periods. 2
       The 24 hour residential care facility exception further requires an employer to
establish that one of two additional conditions is met. (Wage Order No. 5, subd. (11)(E).)
The first condition an employer can choose to meet can, itself, be met in one of two
ways: (a) if the “employees [sic] eats with residents during residents’ meals and the
employer provides the same meal at no charge to the employee,” or (b) the employee “is
in sole charge of the resident(s)” and “on the day shift, the employer provides a meal at
no charge to the employee.” (Id., subd. (11)(E)(1)(a) & (b).) The second condition an
employer can choose to meet is providing employees, “except for the night shift,” the
“right to have an off-duty meal period” not more than once every two weeks “upon 30
days’ notice.” (Id., subd. (11)(E)(2).) Because the employer made no evidentiary
showing as to the applicability of this exception, it did not identify which of these two


       2
          Although the employer defended on the ground employees could, in fact, take
30-minute “off-duty” meal periods, it did not dispute that only one employee worked the
night shift at each of the two small homes (five to six residents) and that the senior
residents could not be left unattended—thus, alluding to regulatory controls. That was
not the case, however, as to employees on the day shift. At least two employees worked
that shift, and often the owner, herself, assisted in the care of residents. The employer
therefore maintained these employees could, if they wanted, take an uninterrupted, 30-
minute meal period and leave the premises.

                                              3
additional conditions it supposedly met. For example, there is no evidence employees
were required to eat with residents during residents’ meals, as required by subdivision
(11)(E)(1)(a). There is no evidence any employee on the night shift (the only shift where
an employee was in “sole charge” of the residents) understood that “on the day shift” that
employee would be provided a meal at no charge, as required by subdivision
(11)(E)(1)(b). And there is no evidence employees were aware they had the right to an
“off-duty” meal period, not more than once every two weeks, with 30 days notice. (Id.,
subd. (11)(E)(2).) Accordingly, as the DLSE also agreed at oral argument, given the
abysmal state of the evidence as to whether the 24 hour residential care facility exception
even applies, the judgment could theoretically also be affirmed on this ground. 3
       Third, the absence of a developed evidentiary record makes examination of the
nature of lawful “on-duty” meal periods under the 24 hour residential care facility
exception virtually impossible. We can point to Brinker as indicating “on-duty” meal
periods must, like “off-duty” meal periods, be 30 minutes in length. (Brinker, supra,
53 Cal.4th at p. 1035 [“An on-duty meal period is one in which an employee is not
‘relieved of all duty’ for the entire 30-minute period.”].) But this says next to nothing
about the nature of a lawful “on-duty” meal period under any exception to the general
rule and, particularly, the 24 hour residential care facility exception.
       By definition, an employee who “may be [lawfully] required to work on-duty meal
periods” (Wage Order No. 5, subd. (11)(E)) continues to have some duties during the
meal period and, thus, does not have either an uninterrupted meal period or the unfettered
right to leave the premises. Accordingly, in contrast to unpaid, uninterrupted 30-minute,
“off-duty” meal periods, during which employees are free to leave the premises—and


       3
          The hearing officer did not discuss the multiple requirements of the 24 hour
residential care facility exception or the evidence pertaining thereto. Rather, concluding
a paid “on-duty” meal period must, like an unpaid “off-duty” meal period, be 30 minutes
in length (without further discussion or elaboration), the hearing officer pointed to the
testimony of the two employees called by the DLSE that they had only 10 to 15 minutes
to eat before turning their full attention to other chores, and on the basis of that testimony
concluded the employer had not provided adequate meal periods.

                                              4
which are easily measured by “punching in and punching out”—the adequacy of lawful
“on-duty” meal periods is not easily evaluated. 4
       The very nature of the 24 hour residential care facility exception is illustrative.
This exception can apply, for example, as discussed above, where “the residential care
employees [sic] eats with residents during the residents’ meals and the employer provides
the same meal at no charge to the employee.” (Wage Order No. 5, subd. (11)(E)(1)(a).)
This envisions, then, communal dining of employee(s) and residents. Given the nature of
24 hour residential care for seniors, it is inevitable that during such communal meals
some residents will need assistance, which could range from pouring a glass of water, to
helping to cut food, to escorting a resident to and from the bathroom. If these sorts of
duties do not unduly impinge on the opportunity of employees to eat a nutritious meal
without being rushed over the course of a half hour, it certainly seems the employees will
have been afforded adequate lawful “on-duty” meal periods. On the other hand, if



       4
          The few DLSE opinion letters addressing “on-duty” meal periods also make
clear that, by definition, employees will continue to have some duties during such meal
periods and whether an “on-duty” meal period is adequate is a highly fact specific
inquiry. (E.g., Dept. Industrial Relations, DLSE Opn. Letter No. 1994.09.28 (Sept. 28,
1994) [“Examples of situations where the nature of the work would require an on-duty
lunch would be situations where the employee is the only person employed in the
establishment and closing the business would work an undue hardship on the employer;
or the continuous operation of machinery requiring monitoring is essential to the business
of the employer. In both of these cases, however, it would be necessary to establish that
the employee has adequate time to eat while on the job.”]; see The 2002 Update of the
DLSE Enforcement Policies and Interpretations Manual (Revised) (Apr. 2017), § 45.2.5
[describing “On-Duty Meal Period” as follows: “Even if all of the circumstances exist to
allow an on-duty meal period, the employee must be provided with the opportunity to eat
his or her meal while performing the duties required.”]; DLSE Memorandum dated Dec.
23, 1999, p. 8 [“Even though the employee is required to work during the on-duty meal
period, the employee must be given the opportunity, while working if necessary, to eat
his or her meal. That is what cannot be waived, if the work period exceeds six hours, and
if an on-duty meal period has been properly established.”].) In fact, the DLSE has not
identified, nor has our research disclosed, any regulatory advisement or other publication
actually stating lawful “on-duty” meal periods must be 30 minutes in length, let alone,
discussing how the adequacy of such meal periods should be assessed.

                                              5
employees feel pressured to eat meals as quickly as possible and to jump up as soon as
they swallow their final bite and turn their full attention to whatever work awaits them,
then it would seem the employees have not been afforded adequate “on-duty” meal
periods. (See Brinker, supra, 53 Cal.4th at p. 1040 [employer may not, by pressuring
employees, “undermine” formal policy of adequate breaks].) And what of an unexpected
event during communal dining—for example, a resident suffers a choking or medical
emergency requiring the immediate and undivided attention of one or more of the
employees? How such an event, which may occur only rarely, impacts the overall
adequacy of lawful “on-duty” meal periods in a 24 hour residential facility for seniors is a
challenging question. It is also one we cannot, and do not, answer here; rather, it is posed
to illustrate the complexity of, and extreme factual specificity of, what will constitute an
adequate 30-minute “on-duty” meal period in any particular context. 5
       Thus, while the DLSE urged us, at oral argument, to affirm on the ground paid
“on-duty” meal periods must be 30 minutes in length and in light of the evidence some
employees felt they had to rush through meal periods and return their full attention to


       5
           There are concomitant record keeping questions. For example, must employees
record minutes spent assisting senior residents, for example, in getting a cup of tea, or in
cutting their food? This would seem to be unduly burdensome and unreasonable. What
about time spent attending to a more unexpected event, like a choking? Again, the point
in raising these questions is to underscore that determining the adequacy of lawful half
hour “on-duty” meal periods and the sufficiency of records documenting such, is an
entirely different, and far more complex, inquiry than that in a case where the general
rule applies and employees are entitled to unpaid, uninterrupted 30-minute “off-duty”
meal periods during which they are free to leave the premises. It also bears noting that
the 24 hour residential care facility exception pertaining to meal periods set forth in Wage
Order No. 5, subdivision (11)(E) does not include the “start over” language that appears
in the rest period provisions that may, under certain circumstances, apply to such
facilities under Wage Order No. 5, subdivision (12)(C), and which states “[a]nother rest
period shall be authorized and permitted by the employer when an employee is
affirmatively required to interrupt his/her break to respond to the needs of residents.”
(See Lab. Code, § 887, subd. (c) [specifying emergency ambulance employees shall
remain on call during meal and rest periods, but if employee receives a communication
that requires a response, that meal or rest period “shall not be counted towards the meal
and rest periods the employee is entitled to” during his or her shift].)

                                              6
work as quickly as possible, it also acknowledged that what constitutes an adequate “on-
duty” meal period depends on the particular context and the specific facts, and that this
case is not one in which we can bring any further illumination to that complex question.




                                             7
Trial Court:

       Sonoma County Superior Court



Trial Judge:

       Hon. Rene A. Chouteau



Counsel for Plaintiffs and Appellants:

       Marie Trimble Holvick, Gordon Rees Scully Mansukhani, LLP
       Sara A. Moore, Gordon Rees Scully Mansukhani, LLP


Counsel for Defendant and Respondent:

       David M. Balter, Division of Labor Standards Enforcement

       Patricia M. Kelly, Division of Labor Standards Enforcement




L’Chaim House et al. v. Department of Labor Standards Enforcement A152975



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