Litigating California Wage & Hour and Labor Code Class Actions

for all overtime hours worked. The defendants argued that this provision exempted them
from the normal requirement to provide meal periods.
The Bearden court held that this collective bargaining exemption from meal period
requirements was invalid because it created a new exemption not recognized in
Section 512. 152 The court noted that Section 512 contains specific exemptions from the
normal meal period requirement—i.e., when an employee working no more than six hours
in a day waives the meal period and under other specified conditions for employees
working in the wholesale baking and broadcasting industries. 153 The court reasoned that
where the Legislature has set forth specific exemptions in a statute, those exemptions are
generally assumed to be exclusive. Proceeding on that premise, the court reasoned that
Section 516 forbade the IWC to adopt exemptions beyond those set forth in Section 512. 154
Despite the invalidity of the collective bargaining exemption, the court held that the
employer could not be held liable for any penalties because Section 226.7 allows for such
penalties only when the employer violates an IWC Wage Order, and U.S. Borax had
complied with Wage Order 16-2001. 155
The Bearden decision has implications beyond the IWC’s right to adopt a collective
bargaining exemption to the meal period requirements. A larger issue for California
employers is whether the IWC had the right to adopt a standard that a meal period violation
occurs whenever an employer “employs any person for a work period of more than five (5)
hours without a meal period of not less than 30 minutes.” That standard, which the DLSE
had originally interpreted as requiring that employees actually take a meal period within
the first five hours of their shifts, arguably contradicts the meal period rule in Section 512,
which requires only that an employer “provide” a meal period to an employee who works a
total work period in a day of more than five hours. Employers must await further
developments for courts to resolve this issue definitively.
VI.
Tip-pooling
Labor Code Section 351 makes it unlawful for an “employer or agent” to “collect, take, or receive
any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.” In the past,
this statute led to two distinct types of class actions on behalf of employees who claim their tips
were unlawfully taken. The first type of action alleged that the employees unlawfully were required
to share tips with co-workers for whom the patrons did not leave the tips. The second type of action
152
153
154
155
Id. at 486-88.
Id. at 487.
Id. at 487-88.
Id. at 493.
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