Labor Code 226.7

Employer Need Not Ensure Breaks

Although employers must provide employees with meal and rest breaks, they need not ensure employees take breaks. Hernandez v. Chipotle Mexican Grill, Inc. (Cal. App. 2d Dist. Sept. 30, 2010), 189 Cal. App. 4th 751, 118 Cal. Rptr. 3d 110, 2010 Cal. App. LEXIS 1853, review granted, depublished, (Cal. Jan. 26, 2011), 120 Cal. Rptr. 3d 530, 246 P.3d 612, 2011 Cal. LEXIS 919, vacated, superseded, transferred, (Cal. June 20, 2012), 143 Cal. Rptr. 3d 526, 279 P.3d 1019, 2012 Cal. LEXIS 5867.

Because the defining characteristic of on duty meal periods is failing to relieve an employee of duty, not simply suffering or permitting work to continue, it follows that off duty meal periods are similarly defined by actually relieving an employee of all duty: doing so transforms what follows into an off duty meal period, whether or not work continues. Brinker Restaurant Corp. v. Superior Court (Cal. Apr. 12, 2012), 53 Cal. 4th 1004, 139 Cal. Rptr. 3d 315, 273 P.3d 513, 2012 Cal. LEXIS 3149.

Time Rounding

Court’s recognition that time-rounding is a practical method for calculating worktime and can be a neutral calculation tool for providing full payment to employees applies to the timekeeping of meal periods. Donohue v. AMN Services, LLC (Cal. App. 4th Dist. Nov. 21, 2018), 241 Cal. Rptr. 3d 111, 29 Cal. App. 5th 1068, 2018 Cal. App. LEXIS 1134, modified, (Cal. App. 4th Dist. Dec. 28, 2018), 2018 Cal. App. LEXIS 1216.

Violation of Labor Code 226.7

Employees who alleged failure to provide second meal periods under Lab C § 512(a), could pursue a claim against their employer for recovery of damages under Lab C § 226.7, notwithstanding case law that had prospectively invalidated a wage order provision containing an exemption from the second meal period requirement. Because of a severability clause, the invalid provision was not an operative part of the wage order at the time of the trial court’s decision; and in light of an amendment to Lab C § 514, and the limits imposed on wage orders by Lab C § 516, the employer was on notice that it was required to provide second meal periods. Lazarin v. Superior Court (Cal. App. 2d Dist. Oct. 7, 2010), 188 Cal. App. 4th 1560, 116 Cal. Rptr. 3d 596, 2010 Cal. App. LEXIS 1742.

Statute of Limitations

Four year statute of limitations that is applicable to suits brought pursuant to California’s Unfair Competition Law (UCL), B & P C §§ 17200 et seq., applies to remedy claims asserted under Lab C § 226.7 in such UCL suits. Tomlinson v. Indymac Bank, F.S.B. (C.D. Cal. Feb. 18, 2005), 359 F. Supp. 2d 891, 2005 U.S. Dist. LEXIS 3576.

Payment imposed for impermissibly failing to provide a meal or rest break was a penalty under Lab C § 226.7(b) and thus had to be raised within one year of the last date the claim accrued under CCP § 340. That limitation period expired before an employer requested an appeal and before an employee first raised it at the de novo trial of the wage claim, in violation of Lab C § 98.2. Murphy v. Kenneth Cole Productions, Inc. (Cal. App. 1st Dist. Dec. 2, 2005), 134 Cal. App. 4th 728, 36 Cal. Rptr. 3d 418, 2005 Cal. App. LEXIS 1861, review granted, depublished, (Cal. Feb. 22, 2006), 40 Cal. Rptr. 3d 750, 130 P.3d 519, 2006 Cal. LEXIS 2547, rev’d, superseded, (Cal. Apr. 16, 2007), 40 Cal. 4th 1094, 56 Cal. Rptr. 3d 880, 155 P.3d 284, 2007 Cal. LEXIS 3596.

According to the California Supreme Court, the “additional hour of pay” for failure to provide an employee with meal or rest periods imposed by Lab C § 226.7 constitutes a “wage,” rather than a “penalty,” and accordingly, is governed by a three-year statute of limitations as set out in CCP § 338; plaintiff employee’s employment with defendant employer ended July 9, 2004 and the employee filed a complaint on June 21, 2006, so his claim for missed meal and rest breaks was timely. White v. Starbucks Corp (N.D. Cal. July 2, 2007), 497 F. Supp. 2d 1080, 2007 U.S. Dist. LEXIS 48922.

If the language of Lab C § 226.7 is interpreted as imposing a penalty against employers for failure to provide legally mandated breaks, the applicable statute of limitations is only one year. CCP § 340(a). In contrast, if the statute provides a wage payment to the wronged employee, a three year statute of limitations applies. CCP § 338(a). West v. Circle K Stores, Inc. (E.D. Cal. Feb. 14, 2006), 2006 U.S. Dist. LEXIS 25164.

Because payments awarded to an employee under Lab C § 226.7 for meal and rest period violations were wages and not penalties, the three-year statute of limitations in CCP § 338 for actions on statutory liabilities was applicable, and the court of appeal erred in applying the one-year statute of limitations for penalties in CCP § 340(a). Murphy v. Kenneth Cole Productions, Inc. (Cal. Apr. 16, 2007), 40 Cal. 4th 1094, 56 Cal. Rptr. 3d 880, 155 P.3d 284, 2007 Cal. LEXIS 3596.

Preemption

Employee’s right to meal periods applied to signatories of collective bargaining agreements (CBA) and constituted a nonnegotiable right under California state law. Because the employees based their meal period claim on the protections afforded them by California state law, Lab C §§ 219, 226.7, and 512, without any reference to expectations or duties created by their CBA, the claim was not subject to preemption under § 301 (29 USCS § 185) of the Labor Management Relations Act, and the court lacked federal question jurisdiction over it under 28 USCS § 1331. Valles v. Ivy Hill Corp. (9th Cir. Cal. June 6, 2005), 410 F.3d 1071, 2005 U.S. App. LEXIS 10408.

Federal contract employee’s claims under Lab C §§ 203, 226, 226.7, were not federally preempted under the supremacy clause, U.S. Const., art. VI, cl. 2, by the McNamara-O’Hara Service Contract Act of 1965 (SCA), 41 U.S.C. § 351 et seq., because the employee’s claims complemented the provisions of the SCA and effectuated its goals. Naranjo v. Spectrum Security Services, Inc. (Cal. App. 2d Dist. Mar. 24, 2009), 172 Cal. App. 4th 654, 91 Cal. Rptr. 3d 393, 2009 Cal. App. LEXIS 431.

Because plaintiff’s claims for travel time under Lab C § 1194, a second meal period under Lab C § 512(d), a third rest break under Lab C § 226.7, and other derivative labor law violations, arose under state law and did not substantially depend on an interpretation of a collective bargaining agreement (CBA), the claims were not preempted by § 301 ( 29 USCS § 195(a)) of the Labor Management Relations Act. It was irrelevant that the CBA provided for some of the same claims under its own terms because the state law claims could have been resolved without interpreting the CBA. Meyer v. Irwin Indus. (C.D. Cal. July 16, 2010), 723 F. Supp. 2d 1237, 2010 U.S. Dist. LEXIS 81713.

Motor carrier was entitled to summary judgment in an action filed by drivers/installers who alleged violations of California’s meal and rest break laws under Lab C §§ 226.7 and 512; the meal and rest break laws were preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAA Act), 49 U.S.C.S. § 14501(c)(1), because they related to prices, routes, or services, and the carrier’s purely intrastate operations did not exempt the laws from the FAAA Act’s regulatory scope. Dilts v. Penske Logistics LLC (S.D. Cal. Oct. 19, 2011), 819 F. Supp. 2d 1109, 2011 U.S. Dist. LEXIS 122421.

Class Actions

Court approved class action settlement under Fed. R. Civ. P. 23(e) in a suit alleging that an employer violated various wage laws, such as Lab C §§ 226.7, 227.3, and B & P C § 17200, because (1) the employees’ case was quite strong in certain aspects; (2) both sides faced significant uncertainty because the claims encompassed unsettled legal issues, and the complexity and duration of further litigation was likely to be considerable; (3) it was not clear that the classes would remain intact if trial proceeded; (4) the amount offered in settlement was appropriate as the employees were ensured compensation for their injuries and the rate of compensation was fair and reasonable; (5) the advanced stage of the proceedings suggested that the parties had carefully investigated the claims before reaching resolution; (6) pursuant to Fed. R. Civ. P. 23(h), the proposed fee calculation, which was 25 percent of the amount recovered, was reasonable; (7) the employees’ attorneys were entitled to recover costs; and (8) the class representatives were entitled to an enhancement award based on their assistance in the case. West v. Circle K Stores, Inc. (E.D. Cal. Oct. 19, 2006), 2006 U.S. Dist. LEXIS 76558.

Interpretation of Lab C § 226.7 and Lab C § 512(a) as requiring employers to make a meal period available rather than ensuring that a period was taken foreclosed class-wide adjudication of employees’ claims under Fed. R. Civ. P. 23(a)(2) and (b)(3) because individual issues predominated; liability could not be established without individual trials for each class member to determine why each class member did not clock out for a full 30-minute meal break on any particular day. Salazar v. Avis Budget Group, Inc. (S.D. Cal. July 2, 2008), 251 F.R.D. 529, 2008 U.S. Dist. LEXIS 51620.

In a case in which a trash truck driver filed a class action suit against his former employer, a trash disposal company, for allegedly violating Labor Code provisions regarding meal and rest periods, a class arbitration waiver was unconscionable with respect to the company’s alleged violations given the modest size of the potential individual recovery, the potential for retaliation against members of the class, and the fact that absent members of the class may have been ill informed about their rights. In addition, because the arbitration agreement prevented the driver from acting as a private attorney general on behalf of other similarly situated current and former employees, it conflicted with the Labor Code Private Attorneys General Act of 2004, Lab C §§ 2698 et seq. Franco v. Athens Disposal Co., Inc. (Cal. App. 2d Dist. Mar. 10, 2009), 171 Cal. App. 4th 1277, 90 Cal. Rptr. 3d 539, 2009 Cal. App. LEXIS 305, modified, (Cal. App. 2d Dist. Mar. 18, 2009), 2009 Cal. App. LEXIS 374.

In an employee’s putative class action alleging violations of wage and hour laws under Lab C §§ 226, 226.7 and unfair business practices under B & P C §§ 17200 et seq., the employee was entitled under 28 U.S.C.S. § 1447(c) to remand the action to state court; the employer’s removal of the action under 28 U.S.C.S. § 1441 was improper because the employer did not prove to a legal certainty that the amount in controversy exceeded $5 million pursuant to the Class Action Fairness Act, 28 U.S.C.S. § 1332(d). Fletcher v. Toro Co. (S.D. Cal. Feb. 3, 2009), 2009 U.S. Dist. LEXIS 126693.

Former restaurant employee’s skeletal complaint was sufficient to state claims that appropriate breaks and overtime compensation were denied in violation of Lab C §§ 226.7, 510, and 512; however, the former employee, as class representative, lacked standing to seek injunctive relief and therefore could not seek injunctive relief on behalf of unnamed class members that included current employees. Washington v. Crab Addison, Inc. (N.D. Cal. June 18, 2010), 2010 U.S. Dist. LEXIS 69692.

In a wage and hour action that was filed under the Private Attorneys General Act, Lab C §§ 2698 et seq., the employer demonstrated by a preponderance of evidence that more than $5 million was in controversy for purposes of the Class Action Fairness Act, 28 U.S.C.S. § 1332(d); the minimum amount in controversy was demonstrated based on penalties for non-compliant wage statements and for waiting-time penalties under Lab C §§ 226(e) and 203 and for damages for missed meal and rest periods under Lab C § 226.7 without even accounting for overtime violations, other penalties, or attorneys’ fees. Coleman v. Estes Express Lines, Inc. (C.D. Cal. July 19, 2010), 730 F. Supp. 2d 1141, 2010 U.S. Dist. LEXIS 79772, aff’d, (9th Cir. Cal. Jan. 25, 2011), 631 F.3d 1010, 2011 U.S. App. LEXIS 1538.