Litigating California Wage & Hour and Labor Code Class Actions

For each workday the employer fails to provide an employee with a required thirty-minute
meal period or ten-minute rest break, the employee is entitled to recover one hour of pay at
the employee’s regular rate. 113 Although the statute is unclear on how failure to provide
multiple required meal or rest periods in a single day is punished, the DLSE has taken the
position that one penalty for missed meal periods and one penalty for denied rest periods
may be imposed per workday. 114 In 2009, a federal district court in Marlo v. United Parcel
Service 115 analyzed the issue and agreed that an employee could recover both a meal
period and a rest period penalty in the same workday. 116 However, the court determined
that an employee can recover penalty pay for only one meal and only one rest period
violation per day, even if the employee were to miss two meal periods or two rest
periods. 117 This decision runs counter to an earlier district court decision that had
decided—in a less detailed analysis—that an employee could recover penalty pay for only
one violation per day, even if the employee were denied both meal and rest periods in the
same workday. 118
In 2011, the California Court of Appeal agreed with Marlo in deciding United Parcel Service,
Inc. v. Superior Court. 119 There, the court noted that the legislative history demonstrated
that Section 226.7 was specifically drafted to conform to the IWC wage orders. 120 Because
the wage orders “provide[] a separate remedy for violations of meal period requirements
and violations of rest period requirements . . . up to two premium payments are allowed per
work day.” 121 Therefore, it appears that this issue has finally been settled.
Many employers fail to maintain records that comprehensively establish that employees in
fact took their meal and rest periods. This is especially the case when an employer has
mistakenly classified a position as exempt, because employers are not required to keep
time records for employees covered by the most common exemptions (administrative,
executive, and professional). Section 7 of the Wage Orders requires employers to record
meal periods of non-exempt employees, and the DLSE generally takes the position that in
the absence of records proving that meal periods were taken, the employees are presumed
113
114
115
116
117
118
119
120
121
Lab. Code § 226.7. See, e.g., Wage Order 7-2001 §§ 11(D) and 12(B).
DLSE Manual § 45.2.8 and 45.3.7.
2009 WL 1258491 (C.D. Cal 2009).
Id. at *7.
Id.
Corder v. Houston’s Restaurants, Inc., 424 F. Supp. 2d 1205, 1207 n.2 (C.D. Cal. 2006) (“Section 226.7(b) states that
the employer is liable ‘for each work day’ that a break is not provided. Thus, the plain wording of the statute is clear that
an employer is liable per work day, rather than per break not provided.”).
196 Cal. App. 4th 57 (2011).
Id. at 67-8.
Id. at 68.
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