Employment Law Blog

Filter:  Labor Code §§ 226.7 and 512

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.5th 257, 264.

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Safety for Employees in the Workplace

An employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not an actual law was being violated. Labor Code § 6310; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300; Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 87; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Thus, it is immaterial if the practice was actually unsafe or whether there was an OSHA standard that was actually being violated. The employee need only have complained in good faith about the working conditions or practices.

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Missed-Break Premium Wages

Labor Code sections 226.7 and 512 in conjunction with Industrial Welfare Commission (“IWC”) Wage Order No. 5 (California Code of Regulations, tit. 8, sec. 11050) require Defendants to authorize and permit meal and rest breaks 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. (2012) 53 Cal.4th 1004, 1035. In order for an employee to be relieved of all duty, the employee must be free to leave the workplace premises. Id. at 1036. An employer cannot “impede or discourage [employees] from [taking breaks].” Id. at 1040.

Section 226.7 and IWC Wage Order No. 5 also require employers to authorize and permit employees to take 10-minute rest breaks for each four hours of work, or major fraction thereof, and to pay employees their full wages during their rest breaks. A “major fraction of four hours” means greater than two hours. Brinker, supra, 53 Cal.4th at 1029. Unless the employee is relieved of all duty during the 30-minute meal break and 10-minute rest break, the employee is considered “on duty” and the meal or rest break is counted as time worked under the applicable wage orders.

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The Fair Labor Standards Act and Class Action Suits in California

There are many public policy considerations that favor the use of class actions in the employment context in California.  First, individual awards in employment cases tend to be modest so the availability of a class action claim plays an important function by permitting employees a relatively inexpensive way to resolve their disputes. Additionally, class actions allow many employees, who may not otherwise file an individual suit due to fear of retaliation, to safely have their day in court as a member of the class. Class actions also serve to inform and protect employees who, for one reason or another, may not otherwise become aware that their rights are even being violated.

Meal and rest break claims are specifically suited to class treatment. See Brinker Rest. Corp., 53 Cal.4th at 1033 (certifying a California class with meal and rest break claims).

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