The Definition of “On-Duty” and “Off-Duty” Periods

March 26, 2014

California Labor Code section 226.7 prohibits employers from requiring its employees to work during any rest period mandated by the Industrial Welfare Commission (“IWC”) Wage Orders.  “[I]n light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection.”  Industrial Welfare Com. v. Superior Court, 27 Cal.3d 690, 702 (1980).  “[T]he IWC’s wage orders are entitled to ‘extraordinary deference, both in upholding their validity and in enforcing their specific terms.’”  Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1027 (2012) (quoting Martinez v. Combs, 49 Cal.4th 35, 61 (2010)).  Rest break requirements “have long been viewed as part of the remedial worker protection framework.”  Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1105 (2007).

IWC Wage Order No. 9 (California Code of Regulations, title 8, section 11090) applies to the “transportation industry”, which is defined therein as “any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another . . . .”  Section 11 of the Wage Order mandates meal breaks as follows:

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .

(D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.

Section 7(A)(3) provides that meal breaks shall be recorded.  If they are not, “a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.”  Brinker (Werdeger, J., concurring), 53 Cal.App.4th at 1052–1053.  “An employer’s assertion that it did relieve the employee of duty, but the employee waived the opportunity to have a work-free break, is not an element that a plaintiff must disprove as part of the plaintiff’s case-in-chief.  Rather . . . the assertion is an affirmative defense, and thus the burden is on the employer, as the party asserting waiver, to plead and prove it.  Id. (citing Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, 33; Williams v. Marshall (1951) 37 Cal.2d 445, 456).

Section 12 of the Wage Order mandates rest breaks as follows:

(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. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.  . . .

(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

The California Supreme Court in Brinker interpreted “major fraction thereof” to mean “more than half”.  Brinker, supra, 53 Cal.4th at 1031–1032.  The additional hour of pay due for missed breaks is a premium wage rather than a penalty, and thus governed by the three-year statute of limitations for unpaid wages.  Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1114 (2007).  When coupled with a claim for restitution under the Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.), the statute of limitations is expanded to four years.  Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191 (UCL, which carries four-year statute of limitations, provides remedy for failure to pay wages).

Employees must be relieved of all duty during their meal and rest breaks.  Brinker, 53 Cal.4th at 1035–1036; Faulkinbury v. Boyd & Associates (2013) 216 Cal.App.4th 220, 236.  During breaks, an employee “must be free to attend to any personal business he or she may choose.”  Brinker, 53 Cal.4th at 1036.  An employee is working and “on duty” when he is “subject to the control of an employer,” “including all the time the employee is suffered or permitted to work, whether or not required to do so.”  Wage Order No. 9 § 2(H).  Time spent by an employee waiting on standby for the benefit of the employer is considered to be on duty.  Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.  In Madera, the court held that police officers were still on duty during meal periods because:

“The officers are subject to call by their superiors, they are required to respond to requests by citizens, they are required to respond to emergencies . . . they must inform ‘communications’ where they are eating so they can be reached, and supervisory approval is required to take a meal out of their area . . . [T]hey may take their [break] time only at a time approved by their superiors and not at any regularly scheduled time of day or night.  Other restrictions exist.”

Id. at 409–410. 

Similarly, in Augustus v. American Commercial Security (July 6, 2012) Los Angeles Superior Court No. BC336416, 2012 WL 3758467, the court awarded 89 million dollars to a class of security guards for missed breaks where the guards were required to carry a radio with them at all times and return to their station if hailed to do so.  The court noted in its judgment:

In general, [the defendant] balks at the notion that the employer must relieve workers of all duties for the rest break to be legally valid.  Put simply, if you are on call, you are not on break.  That has been the law for many years. . . .

All the particulars are consistent with this simple analysis.  [The employee] testified that he did not carry a radio on certain “breaks” but there is no evidence that while on “break” he was off-call or off-duty.  There are many alternatives to the radio for hailing a person back to work: cell phone, pager, fetching, hailing, and so on.  The reasonable inference is that [the employee’s] situation conforms to the general pattern of evidence, which is that [the defendant] required all its workers to be on-call during their breaks, and so these on-call breaks are all legally invalid.

Code of Federal Regulations, title 29, sections 785.15–785.16 are instructive on this point: 29 C.F.R. 785.15:

A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity.  The rule also applies to employees who work away from the plant.  For example, a repair man is working while he waits for his employer’s customer to get the premises in readiness.  The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity.  The periods during which these occur are unpredictable.  They are usually of short duration.  In either event the employee is unable to use the time effectively for his own purposes.  It belongs to and is controlled by the employer.  In all of these cases waiting is an integral part of the job. The employee is engaged to wait.  (See: Skidmore v. Swift, 323 U.S. 134, 137 (1944); Wright v. Carrigg, 275 F. 2d 448, 14 W.H. Cases (C.A. 4, 1960); Mitchell v. Wigger, 39 Labor Cases, para. 66,278, 14 W.H. Cases 534 (D.N.M. 1960); Mitchell v. Nicholson, 179 F. Supp, 292,14 W.H. Cases 487 (W.D.N.C. 1959))

29 C.F.R. 785.16:

(a) General.  Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.  He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived.  Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

(b) Truck drivers; specific examples.  A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period.  If the driver reaches his destination and while awaiting the return trip is required to take care of his employer’s property, he is also working while waiting.  In both cases the employee is engaged to wait.  Waiting is an integral part of the job.  On the other hand, for example, if the truck driver is sent from Washingtion, DC to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip the idle time is not working time.  He is waiting to be engaged.  (Skidmore v. Swift, 323 U.S. 134, 137 (1944); Walling v. Dunbar Transfer & Storage, 3 W.H. Cases 284; 7 Labor Cases para. 61,565 (W.D. Tenn. 1943); Gifford v. Chapman, 6 W.H. Cases 806; 12 Labor Cases para. 63,661 (W.D. Okla., 1947); Thompson v. Daugherty, 40 Supp. 279 (D. Md. 1941))

These regulations are entitled to deference.  Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 379 (citing Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 38; and Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 910).

An employee is not relieved of all duty for a break if he is expected to respond to communications from his employer during the break.  The Division of Labor Standards Enforcement (“DLSE”) dealt with this issue in the context of employee pagers:

If the employee is simply required to wear a pager or respond to an in-house pager during the meal period there is no presumption that the employee is under the direction or control of the employer so long as no other condition is put upon the employee’s conduct during the meal period.  If, on the other hand, the employer requires the employee to not only wear the pager or listen for the in-house paging system, but also to remain within a certain distance of a telephone or otherwise limits the employee’s activities, such control would require that all of the meal period time be compensated.

So long as the employee who is simply required to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for.  On the other hand, if the employee responds, as required, to a pager call during the meal period, the whole of the meal period must be compensated.

DLSE Opinion Letter No. 1992.01.28.

In addition to being off-duty, meal and rest breaks must be continuous and uninterrupted.  Brinker, 53 Cal.4th at 1035–1036; DLSE Opinion Letter No. 2002.02.22 (cited with approval in Faulkinbury, 216 Cal.App.4th at 237).  The employer must provide a reasonable opportunity to take breaks and not impede or discourage employees from taking them.  Brinker, 53 Cal.4th at 1040; Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, 80 Cal.Rptr.3d 781, 786 (reversed on other grounds).  “The onus is on the employer to clearly communicate the authorization and permission to its employees” to take proper breaks.  Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1199 (citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 963).

Labor Code § 226(a) requires employers to furnish accurate, itemized wage statements to each of its employees showing, inter alia, the total hours the employee worked during the pay period and the applicable pay rate. Rest break premium wages constitute wages for the purposes of inaccurate wage statement penalties.  Murphy, supra, 40 Cal.4th 1094, 1114 (missed-break premium wages are part of an employees wages earned).  See also Avilez v. Pinkerton Government Services (C.D. Cal. 2012) 286 F.R.D. 450.

Labor Code § 226(e)(2) provides that an employee is deemed to suffer injury for an inaccurate wage statement violation if “the employee cannot promptly and easily determine from the wage statement alone . . . any of the . . . information required to be provided on the itemized wage statement pursuant to items (2) to (4), inclusive . . . of subdivision (a).”  Item (2) of subdivision (a) is “total hours worked by the employee.”

Lab. Code § 201(a) requires an employer to pay all wages owed to employees immediately upon termination.  If the employer willfully fails to do so, the employer must pay the aggrieved employees 30-days’ pay as a statutory penalty under Lab. Code § 203(a).  Missed-break premium wages constitute wages for the purposes of waiting time penalties.  Murphy, supra, 40 Cal.4th 1094, 1114 (missed-break premium wages are part of an employees wages earned).  See also Avilez, supra, 286 F.R.D. 450.  Pursuant to Lab. Code § 203(b), the statute of limitations for these “waiting time” penalties is the same as that for the underlying wages owed.

“Wilfulness” in the context of waiting time penalties just means “intentional.”  “’[T]o be at fault within the meaning of [section 203], the 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.  As used in section 203, ‘willful’ merely means that the employer intentionally failed or refused to perform an act which was required to be done.’”  Armenta v. Osmose, Inc., 135 Cal.App.4th 314, 325 (2005) (quoting Barnhill v. Robert Saunders & Co., 125 Cal.App.3d 1, 7 (1981)). 

“An employer’s good faith mistaken belief that wages are not owed may negate a finding of wilfulness.”  Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc., 102 Cal.App.4th 765, 782–783.  In Road Sprinkler the employer misclassified its employees as exempt and failed to pay them overtime.  The employer argued that its failure to pay the employees their overtime wages upon termination was not willful, for the purposes of waiting time penalties, since it believed in good faith that it its employees were exempt.  The court rejected that argument, holding that, in order to negate wilfulness, a good faith mistaken belief has to be reasonable.  In that case it was clear from existing law that the employees were non-exempt, so the employer’s subjective belief that the employees were exempt was unreasonable.  Thus the court upheld waiting time penalties.

The Labor Code Private Attorneys General Act of 2004 (Lab. Code § 2698 et seq.) (“PAGA”) deputizes private parties to collect civil penalties for Labor Code violations.  Arias v. Superior Court, 46 Cal.4th 969, 986 (2009) (“An employee plaintiff suing, as here, under [PAGA] does so as the proxy or agent of the state’s labor law enforcement agencies.”).  “When proven, Labor Code violations give rise to civil penalties.”  Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1195 (2008).  “Imposition of civil penalties has, increasingly in modern times, become a means by which legislatures implement statutory policy.”  Hale v. Morgan, 22 Cal.3d 388, 398 (1978); Starving Students, Inc. v. Department Of Industrial Relations, 125 Cal.App.4th 1357, 1367 (2005).

Where the Labor Code does not provide a penalty for a particular violation, PAGA establishes a default penalty of $100 per employee per pay period for an initial violation and $200 per employee per pay period for subsequent violations.  Lab. Code § 2699(f).  Since the Labor Code does not provide any civil penalty specifically for rest break violations, the PAGA default penalty applies.  Thurman v. Bayshore Transit Management, Inc., 203 Cal.App.4th 1112, 1134 (2012); Home Depot U.S.A., Inc. v. Superior Court, 191 Cal.App.4th 210, 218 (2010).  Thus, section 2699(f) penalties apply.

Lab. Code § 204 requires employers to, every pay period, pay its employees their wages earned for that pay period.  Lab. Code § 210 subjects employers to a penalty for failing to do so.  The penalty is $100 per employee per pay period for an initial violation and $200 per employee per pay period for subsequent violations, plus 25% of the unpaid amount.  Section 210 states that the penalty is “In addition to, and entirely independent and apart from, any other penalty.”  Since employees are immediately entitled to a premium wage whenever they miss a rest break, those wages must be paid to the employee at the end of the pay period during which the break was missed.  Murphy, supra, 40 Cal.4th at 1108.

Lab. Code § 558 subjects employers to penalties for violating any provision of any IWC Wage Order regulating hours of work.  The penalty is $50 per employee per pay period for an initial violation and $100 per employee per pay period for subsequent violations.  Section 558 penalties are “in addition to any other civil or criminal penalty provided by law.”

Each of the foregoing penalties provide for double penalties when the violation is a “subsequent” one.  “Subsequent violations” occur once the employer is put on notice that its conduct violates the law.  Amaral, supra, 163 Cal.App.4th at 1209.  The increased penalty is obviously designed to motivate and penalize particularly obstinate or apathetic employers who fail to comply with the Labor Code requirements even after an initial warning.

Lab. Code § 226.3 subjects employers to a civil penalty for wage statement violations.  The penalty is $250 per employee per violation for an initial citation and $1000 per employee per violation for subsequent citations.  Penalties under this section are discretionary if the violation was due to a “clerical error or inadvertent mistake.”  Lab. Code §§ 226.3, 2699(e)(1).  “Inadvertent” in this context means “unintentional, accidental or not deliberate.”  Heritage Residential Care, Inc. v. DLSE, 192 Cal.App.4th 75, 83–86 (2011).

If the court concludes that an employer has violated the Labor Code, then the court has no discretion to impose penalties.  “When proven, Labor Code violations give rise to civil penalties.”  Amaral, supra, 163 Cal.App.4th at 1195.  “[PAGA penalties] are mandatory, not discretionary.”  Id.  The court must impose penalties consistent with the “remedial objectives” of PAGA and other Labor Code penalty provisions.  Id. at 1184, 1213–1214; Industrial Welfare Com., supra, 27 Cal.3d at 702 (affirming trial court’s grant of full PAGA penalties).

PAGA defines a set of narrow circumstances in which the court has power to reduce the amount of penalties assessed: if the amount of penalties would be unjust, arbitrary and oppressive, or confiscatory based on the facts and circumstances of the particular case.  Lab. Code § 2699(e)(2).  Notwithstanding that power, “judicial discretion must be exercised within the confines of the statute that grants the discretion.”  Amaral, 163 Cal.App.4th at 1213 (citing Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359, 393–394, 33 (2005)).  “The text of section 2699 and the legislative history of PAGA indicate the purpose of the act was to encourage a broad collection of civil penalties to deter Labor Code violations.”  Id. (citing Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 370, 374 (2005), emphasis supplied).

Factors contributing to the propriety of assessing a penalty are, inter alia, whether the employer’s violation was willful and egregious, and whether the amount assessed is sufficient to deter the employer from committing future violations.  Id.  Though, a finding of wilfulness is not necessary to the imposition of penalties.  Courts will award the full extent of penalties even absent a finding of wilfulness.  For example, in Amaral, the Court of Appeals upheld the trial court’s decision to impose full penalties even though the trial court stopped short of finding the employer’s violations to be willful.  The fact that the employer took a “cavalier approach to fulfilling its contractual and statutory obligations” provided a basis for finding that it acted with “gross negligence or reckless disregard.”  Amaral, supra, 163 Cal.App.4th at 1214.

One appellate case, Thurman, supra, approved of a trial court reducing penalties.  But that was only where the employer “took their obligations under [the Wage Order] seriously and attempted to comply with the law.”  In Thurman, the employer imposed meal and rest break requirements over the employees’ objections.  The employer counselled employees about their breaks and took affirmative steps to communicate with the employees’ union to ensure that the break policy was legally compliant.

The California Supreme Court has identified three requirements for the certification of a class: (1) “the existence of an ascertainable and sufficiently numerous class”; (2) a well-defined community of interest”; and (3) “substantial benefits from certification that render proceeding as a class superior to the alternatives.”  Brinker, supra, 53 Cal. 4th at 1021.  The community of interest requirement in turn has three factors: (1) common questions of law or fact predominate over individual questions; (2) the class representatives have claims or defenses typical of the class; and (3) the class representatives can adequately represent the class.  Id.  The main issue with respect to maintaining a class action is the predominance issue:

“The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’  The answer hinges on ‘whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.’  A court must examine the allegations of the complaint and supporting declarations and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible.  ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’

Brinker, supra, 53 Cal.4th at 1021-1022.

Courts have routinely granted class certification of meal and rest break class actions, particularly where the question is whether the employer’s break policy, or lack thereof, violates the law.  “The theory of liability—that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment.”  Id. at 1034.  “Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.”  Id. at 1033 (citing Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1299–1305; Ghazaryan v. Diva Limousine, Ltd., (2008)169 Cal.App.4th, 1524, 1533–1538; Bufil v. Dollar Financial Group, Inc., supra,162 Cal.App.4th at 1205–1208.)

The California Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against an employee on the basis of their disability.  Government Code section 12940, subd. (a).  The FEHA further requires employers to reasonably accommodate their employees’ disabilities and to engage in a “timely, good faith, interactive process” in order to determine effective reasonable accommodations.  Id. at subd. (m), (n).  “Two principles underlie a cause of action for failure to provide a reasonable accommodation.  First, the employee must request an accommodation.  . . .  Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.”  Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266, rehearing denied, review denied; Prillman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954).

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.”  Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192 (citing Jensen, supra, 85 Cal.App.4th at 256).

It is well established that permitting an employee to take medical leave is a reasonable accommodation, provided it is likely that the employee will be able to perform his job at the end of the leave.  Wilson, supra, 169 Cal.App.4th at pp. 1193–1194; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (citing Kimbro v. Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869, 878–879); Jensen, supra, 85 Cal.App.4th at 263; Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 244; Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341 (“A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.”)

Author: Richard Hoyer
Category: Class Actions, Legal Procedure, Missed Meal and Rest Breaks, Overtime, Paid Leave, Unpaid Wages, Wage and Hour
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