California Law: Class Action Suits & Missed Meal/Rest/Break Periods

Labor Code §§ 226.7 and 512 and the applicable wage orders require an employer to authorize and permit meal and rest periods to their employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes. “[A]n employer’s obligation is to provide an off-duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1035 (2012). “An employer must relieve the employee of all duty for the designated period.” Id. at 1034. An employer cannot “impede or discourage [employees] from [taking off-duty rest periods].” Id. at 1040. Section 226.7 and applicable wage orders also require employers to authorize and permit employees to take 10-minute rest periods for each four hours or major fraction thereof of work, and to pay employees their full wages during their rest periods. “[A]s a general matter,” one rest break should fall on either side of the meal break.” Id. at 1032. Unless the employee is relieved of all duty during the 30-minute meal period and 10-minute rest period, the employee is considered “on duty” and the meal or rest period is counted as time worked under the applicable wage orders. Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5^th 257, 264.

Time spent traveling to and from a “rest area” or break room does not qualify as part of the requirement that a net ten minutes of off-duty break time be authorized. DLSE Opinion Letter 2002.02.22 at 2; see also Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5^th 257, 269-271 (Employees must be provided with a ten full minutes of “truly uninterrupted time” to be used however the employee sees fit.)

When an employer fails to provide a rest or meal period in accordance with the applicable wage orders, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that a required rest period is not provided, and one additional hour of pay for each work day that a compliant meal period is not provided. Labor Code § 226.7.

Any employer with unlawful rest and meal period practices such as those described above also requires their employees to perform work without compensation in violation of Labor Code §§ 200, 510, 1194(a) and applicable IWC Wage Orders. The Wage Orders define “hours worked” as the “the time during which an employee is subject to the control of an employer and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Labor Code § 1194(a) provides that employees are entitled to recover the unpaid balance of their minimum wage or overtime compensation. Specifically, § 510 requires an employer to pay overtime compensation at one and one-half times the regular rate of pay for an employee where the employee works more than eight hours in a day or forty hours in a week. 

Employees are entitled to hourly wages for the shifts for which they suffered an automatic deduction of the thirty minutes of wages but were not provided with a thirty-minute off-duty meal period.

Labor Code §§ 201-203 require an employer to pay all wages owed to an employee who has been discharged or who has quit. If the employer fails to pay an employee all wages owed within the statutorily required time period, § 203 calls for a penalty on the employer equal to one day’s rate of pay for each day the employer fails to pay, for a time period not to exceed 30 days. Defendant’s liability for waiting-time penalties under Labor Code § 203 flows directly from the violations established above. Defendant easily satisfies the requirement that its failure to pay proper wages upon termination was “willful.” The standard for willful is not high: “[t]he employer’s refusal to pay need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due.” Rivera v. Rivera, No. 10-CV-01345-LHK, 2011 WL 1878015 at *7 (N.D. Cal. May 17, 2011). A willful failure to pay wages within the meaning of § 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. Id.

California courts have interpreted § 17200 broadly, and have consistently held that a violation of any law or statute can serve as the predicate for pursuing a § 17200 claim. Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F.Supp.2d 1035, 1048 (C.D. Cal. 1998).

The commonality requirement of Fed. R. Civ. P. 23(a)(2) “is met if there is at least one common question or law or fact.” Fry v. Hayt, Hayt & Landau,198 F.R.D. 461, 467 (E.D. Pa. 2000). As the Ninth Circuit held in Hanlon: Rule 23(a)(2) has been construed permissively. Hanlon v. Chrysler Corp.,150 F.3d 1011 (9th Cir. 1998). An potential class action lawsuit member “need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution . . . a single common question” satisfies commonality.  Wang v. Chinese Daily News, Inc., No. 08-55483, 2013 WL 4712728 (9th Cir. Sept. 3, 2013)). Furthermore, the existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class. Hanlon, 150 F.3d at 1019. Additionally, Rule 23(b)(3) requires potential class action lawsuit members to demonstrate that these common questions predominate over questions that affect only individual putative subclass members. “When the claim is that an employer’s policy and practices violated labor law, the key question for class certification is whether there is a consistent employer practice that could be a basis for consistent liability.” Kamar v. Radio Shack Corp. 2008 WL 4552953 *10 (C.D. Cal. October 8, 2008). Thus, where the employer has a policy that is applied to the class at large, the appropriateness of class certification is “easily established.” Id.    

Although the number of non-compliant meal and rest periods may vary, these are damages questions and should not impact class certification. Yokoyama, 594 F.3d at 1094. The fact that individual inquiry might be necessary to determine whether individual employees were able to take breaks despite the employer’s allegedly unlawful policy (or unlawful lack of a policy) is not a proper basis for denying certification. Benton, 220 Cal.App.4th 701.

“Rule 23(a)(3) requires that the claims of the named parties be typical of the claims of the members of the class.” Fry, 198 F.R.D. at 468. “Under the rule’s permissive standards, a representative’s claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. To satisfy the requirement of typicality, “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 156 (1982).

An employee’s claims on behalf of similarly aggrieved employees seeking penalties under the PAGA are derivative of the meal and rest period claims discussed above, which also constitute violations of §§ 210, 226.3 and 558 and also give rise to penalties pursuant to § 2699(f) for violations of sections 204, 226.7, 512, and 1174. Moreover, even if a class is not certified, The California Supreme Court has held that an employee need not satisfy class action requirements in order to bring a representative action under the PAGA. Arias v. Superior Court (2009) 46 Cal.4th 969, 981.