Rest Breaks and the Duty of the Court to Protect Class Members

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 (1980) 27 Cal.3d 690, 702.  “[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 (2012) 53 Cal.4th 1004, 1027 (quoting Martinez v. Combs (2010) 49 Cal.4th 35, 61).  Rest break requirements “have long been viewed as part of the remedial worker protection framework.”  Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105.

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 . . . .” Sections 11 and 12 of the Wage Order mandate that employers authorize and permit its employees to take one 10-minute rest break as near as possible to the middle of every four hours of work and one 30-minute meal break for every five hours of work.  The Wage Order further provides that, if an employee is forced to work through his break, the employer must compensate him with one hour of pay for every day that a meal or rest break is missed.

Employees must be relieved of all duty during their meal and rest breaks.  Brinker, supra, 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. 

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

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.  . . .

29 C.F.R. 785.15

(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.  . . .

29 C.F.R. 785.16

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). At the very least, whether standby time constitutes off-duty break time sufficient to satisfy California break requirements is a contentious issue.

“In the context of a class action, it is the court’s authority and duty to exercise control over the class action to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice.”  Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581 (citing Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 100–103).  “Communications that misrepresent the status or effect of the pending action, or which may cause confusion, adversely affect the administration of justice.”  Id. at 582.  “Where a trial court identifies a potential for abuse, the court ‘has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel’ and parties.”  Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1454 (quoting Howard Gunty, supra, 88 Cal.App.4th at 579).  In the class action context, it is “‘essential that the class members’ decision to participate . . . be made on the basis of independent analysis of its own self-interest.’”  Gainey v. Occidental Land Research (1986) 186 Cal.App.3d 1051, 1058 (discussing the importance of an unbiased class notice procedure) (internal citation omitted).  A class member’s decision to participate in the class action must be “free and unfettered” from the defendant’s “own competing and argumentative notice and invitation to the class members to opt out.”  Id.

Code Civ. Proc. § 526 authorizes the Court to grant a preliminary injunction “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.”  Section 527 authorizes the Court to grant a temporary restraining order ex parte pending the resolution of the preliminary injunction issue when “[i]t appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the mater can be heard on notice.”  Additionally, the California Supreme Court has “often recognized the ‘inherent powers of the court . . . to insure the orderly administration of justice.’”  Walker v. Superior Court (1991) 53 Cal.3d 257, 266 (quoting Hays v. Superior Court (1940) 16 Cal.2d 260, 264).  “Although some of these powers are set out by statute ([Cal. Code Civ. Proc.] § 128, subd. (a)), it is established that the inherent powers of the courts are derived from the Constitution (art. VI, § 1 [reserving judicial power to courts] [cite]), and are not confined by or dependent on statute.”  Id. at 267 (citing Bauguess v. Paine (1978) 22 Cal.3d 626, 635–636; Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287).  “Courts are not powerless to formulate rules of procedure where justice demands it.”  Adamson v. Superior Court (1980) 113 Cal.App.3d 505, 509.  A court has “inherent power to control the proceedings before it and to make orders which prevent the frustration, abuse, or disregard of the court’s processes.”  Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785.  “The trial court’s inherent powers have been recognized, endorsed and affirmed in a considerable body of authority, and the powers have been flexibly applied in response to the many vagaries of the litigation process.”  Peat, Marwick, supra, 200 Cal.App.3d at 287.

The Court’s inherent powers include evidentiary sanctions.  Id. at 288; Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 107–108; see also Barker v. Bledsoe (W.D. Okla. 1979) 85 F.R.D. 545, and Wm. T. Thompson Co. v. General Nutrition Corp. (C.D. Cal. 1984) 593 F.Supp. 1443 (both cited with approval in Peat, Marwick).  The Court’s inherent powers also include restrictions on communications with potential class members.  Hernandez v. Vitamin Shoppe Industries, Inc., supra, 174 Cal.App.4th 1441; Gainey v. Occidental Land Research, supra, 186 Cal.App.3d 1051, 1057–1058; Howard Gunty, supra, 88 Cal.App.4th 572; Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867; Parris v. Superior Court (2003) 109 Cal.App.4th 285.

As established above, meal and rest breaks are off-duty and uninterrupted periods of time.  Even if an employee is not actively performing a task, but rather waiting to perform a task, such standby time is not break time.