Over the last three years, many workers’ lawsuits for violation of various Labor Code provisions, such as for violation of overtime laws, for violation of minimum wage laws, and for misclassification of workers as “exempt” or as “independent contractors”, have also added causes of action for meal and rest break penalties, especially as a result of the California Supreme Court decision in Murphy vs. Kenneth Cole Productions, Inc. (2007) 40 Cal. 4th 1094. The Murphy decision ruled that the worker’s recovery of that hour’s pay is a “wage”, not a “penalty”.
California Labor Code §226.7 provides for the worker’s recovery of an hour of pay for every missed meal or rest break. If classified as a “penalty”, California’s one-year statute of limitations for “penalties” applies [C.C.P. §340(a)]. However, if that pay is classified as a “wage”, then California’s three-year statute of limitations applies [C.C.P. §338]. Thus, under Murphy, the three-year statute of limitations applies.
Many complaints also add a claim for violation of Business & Professions Code §§ 17200 (Unfair Business Practices or Unfair Competition), on the ground that employers underpaying their employees gain an unfair advantage over their law-abiding competitors. The statute of limitations on an §17200, et seq. claim is four years. Therefore, employees can recover the one hour-per-day pay recovery, for both rest and meal break penalties, for up to four years prior to the date of filing suit.
However, recent appellate decisions have put the brakes on “breaks” lawsuits.
There is a split of authority in California on whether an employer must insure that its employees take their full uninterrupted meal and rest breaks, or merely provide an opportunity to do so. One case that seems to hold that the employer must insure that its employees take such breaks is Cicairos v. Summit Logistics, Inc. (2005) 133 Cal. App. 4th 949, 962-963 [“employers have ‘an affirmative obligation to insure that workers are actually relieved of all duty’”, citing a Department of Labor Standards Enforcement (“DLSE”) Opinion Letter (Nº 2002.01.28), which has since been withdrawn (DLSE Opinion Letter Nº 2008.10.23)].
However, the Cicairos case may well be limited by the factual circumstances facing those employees, truck drivers, because the employer in that case pressured the drivers to make a certain number of trips during a work day, monitored its drivers, did not include any computer system code for rest breaks, and otherwise established a working environment which effectively deprived its drivers of an opportunity to take breaks. A similar case, also involving drivers who were on the road most of the day, and involving an employer’s practice of designating delivery schedules and routes that made it impossible for employees to both take their breaks and complete their deliveries on time, is Jaimez v. Daiohs USA, Inc. (2010) 181 Cal. App. 4th 1286, 1300-1301, 1303-1304.
The appellate decisions in Brinker Restaurant v. Superior Court [(2008) 167 Cal. App. 4th 1278 (2d Ap. Dist., Div. 3)]; Brinkley v. Public Storage [(20080 165 Cal. App. 4th 25 (4th Ap. Dist., Div. 1)] and Hernandez v. Chipotle Mexican Grill, Inc. [(2010) 2010 S.O.S. 6126] are having the effect of applying the “brakes” to “breaks” cases.
The Hernandez court, which for the most part dealt only with meal breaks (the plaintiff more or less conceded the issue on rest breaks) opined that the California Supreme Court is likely to decide the Brinker and Brinkley cases such that California employers are only required to provide employees with the opportunity to take breaks, but are not required to insure breaks are taken. [And for class action purposes, the Hernandez court found that even where an employee’s time record indicated that a break was missed, that would not, by itself, establish that the employer, Chipotle, failed to authorize, provide or permit the employee to take his breaks].
The Hernandez court held that while employers are precluded “from pressuring employees to skip breaks, declining to schedule breaks, or establishing a work environment discouraging or preventing employees from taking such breaks”, they are not required to “insure employees take meal breaks”.
The underlying law is found in the Labor Code, the Industrial Wage Commission Wage Orders applicable to each industry, and in the California Code of Regulations.
Labor Code §226.7 states:
“No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission”.
Labor Code §512(a) provides that employers must “provide” employees with meal periods of no less than thirty minutes if they work shifts of more than five hours per day, and a second thirty-minute meal break if they work shifts longer than ten hours per day:
“An employer may not employ an employee for a work period of more than five hours per day without providing” the employee with a meal period of no less than thirty minutes, except that if the total work period per day is no more than six hours, the meal period may be waived by mutual consent of the employer and employee.”
Wage Orders of the Industrial Welfare Commission (“IWC”) are codified in the California Code of Regulations [Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal. 4th 319, 324]; and they govern employment in the State of California [Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal. App. 4th 1524, 1534; Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal. 4th 557, 561-562].
Labor Code §516 specifically authorizes the IWC to “adopt or amend working condition orders with respect to break periods, meal periods and days of rest…”
C.C.R., title 8, §11050(11), relating to restaurant workers, states that (B) “If an employer fails to provide an employee a meal period …, the employer shall pay the employee one hour of pay at the employee’s regular rate…for each workday that the meal period is not provided". Similarly, C.C.R., title 8, §11050(12) states that “(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period…at the rate of ten minutes net rest time per four hours or major fraction thereof…; (B) If an employer fails to provide an employee a rest period…, the employer shall pay the employee one hour of pay at the employee’s regular rate…for each workday that the rest period is not provided.” Employers must keep accurate hours of meal periods, but not of rest periods [C.C.R., title 8, §11050(7); Franco v. Athens Disposal Co., Inc. (2009) 171 Cal. App. 4th 1277, 1299].
Similarly numbered C.C.R. sections and IWC Wage Orders apply to many other industries, such as the travel industry, the service industry, the manufacturing industry, etc.
Murphy v. Kenneth Cole Productions, Inc. [(2007) 40 Cal. 4th 1094, 1104] characterized the meal period obligations as an obligation not to force employees to work through breaks, and obligation to act so that its employees are free from the employer’s control during the meal period.
Finally, the Hernandez court held that “requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who did not appear to remain in contact with the employer during the day”, citing from White v. Starbucks Corp. [(N.D. Cal. 2007) 497 F. Supp. 1080, 1088-1089], and “would create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws”, citing from Brown v. Federal Express Corp. [(C.D. Cal. 2008) 249 F.R.D. 580, 585].
Therefore, it seems likely that the California Supreme Court will make a ruling which at least in some measure imposes greater restrictions on establishing a meal and/or rest break violation.
The type of statistics that a plaintiff class might present are often derived directly from long analysis of time card records, or from computerized spreadsheets relating to employee time records. Statistics helpful to the analysis of class certification include:
- the percentage of employees at each store/restaurant/location, and across all locations, that missed at least one rest and/or meal break;
- how often, on average, each employee missed a meal and/or rest break (on what percentage of workdays);
- the percentage of stores/locations that had at least one missed meal and/or rest break; and
- the percentage of time cards that did not record a meal or rest break in each mandated period.
Plaintiffs trying to establish a breaks violation should back up their claim with declarations attesting:
- to the widespread interruption of breaks by employers;
- that the employer has no written policies regarding the taking of such breaks;
- that the employer’s written policies are routinely violated, ignored or not disseminated by the employer, or are otherwise merely pro forma;
- a working environment that deters taking of breaks or which requires that a certain number of jobs or tasks must be accomplished within a shift such that it would be impossible for the staff assigned on each shift to both take breaks and also accomplish these tasks; and
- that the employees are pressured to work through breaks by supervisors, management and/or owners.
Employers can protect themselves as follows:
- Written policies would be best if they mandate a ten-minute rest break for every 3½ hours worked and if they mandate a meal break of at least thirty minutes if the employee works five hours or more.
- Written policies are more likely to be deemed adequate if the work site provides a comfortable facility for meals and rests.
- Written policies must provide that such breaks are mandatory, uninterrupted and that they cannot be ended early.
- Written policies are the subject of initial and follow-up training of both non-exempt employees and their supervisors and managers.
- Obtaining declarations from non-exempt employees which attest that these declarants (and/or their co-workers) all received all of their meal and rest breaks, providing strong, if rebuttable, evidence that the written policies are not merely pro forma.
- Obtaining declarations wherein non-exempt employees attest that they and/or their fellow employees occasionally forget to record breaks, or record them erroneously, provide evidence that the policies were not just pro forma, but that a complaining employee simply didn’t follow procedure.
- Paying for lunch break time, because while not mandated by law, this strengthens defendant company arguments that non-exempt employees have no incentive to accurately record their breaks.
Where the policies are intended to address situations where an employee failed to clock in or out, whether for breaks or the workday, sometimes they provide that the employee is to inform the manager, who corrects the error by editing the time card. If the time card is not signed or initialed by the employee, particularly at the site on the time card where the error was corrected, a reasonable inference may be that the time cards were systematically edited, after the fact, for litigation purposes.