If an employer payments and meet requirements in order to have the affirmative defense to piece rate violation, does the employer have to make payments to former employees?
Yes. The statute requires payments to “each” of the employer’s employees “for previously uncompensated or undercompensated rest and recovery periods and other nonproductive time,” determined by using one of the formulas quoted above. Subdivision (a)(1) requires the employer to use due diligence to locate and pay former employees.
Payments are not required, however, for any time periods for which:
- An employee has, prior to August 1, 2015, entered into a valid release of claims not otherwise banned by this code or any other applicable law for compensation for rest and recovery periods and other nonproductive time.
- A release of claims covered by this subdivision [was] executed in connection with a settlement agreement filed with a court prior to October 1, 2015, and later approved by the court.
(See Labor Code §226.2(b)(2).)
In general terms, this means that payments are not required for employees who have previously settled claims related to compensation for rest and recovery periods and other nonproductive time.
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