When meal or rest periods are not given or taken in California, the employer owes the employee premium pay. Labor Code section 226.7 states that employers are required to pay an employee a premium payment of one additional hour of pay "for each work day that the meal or rest period is not provided."

Question:

• Does this statute authorize one premium payment per work day, regardless of the number or type of break periods that were not provided?


• Or does the statute authorize two premium payments per work day - one for failure to provide a meal period and another for failure to provide a rest period?

This issue was recently decided by a California Court of Appeal in United Parcel Service Inc. v. Superior Court (Allen), No. B227190?2011 WL 2150776 (Cal Ct. App., 2d Dist. June 2, 2011).

UPS is being sued in 32 coordinated actions by employees who are seeking compensation for meal and rest period violations. UPS asked the court to determine before trial whether the employees were entitled to one premium payment or two premium payments per day. After a rehearing on the issue, the court affirmed that the Labor Code permits up to two premium payments per work day. The court reasoned that without the second penalty an employer might be tempted to require an employee who missed a meal break to also miss his or her 10-minute rest break.

Employers continue to wait for the California Supreme Court to decide Brinker Restaurant Corp v. Superior Court and resolve the uncertainty as to whether employers are required to merely provide meal and rest periods or ensure that they are taken.

The best course of action pending a final decision:

• Ensure that meal and rest periods are taken


• For meal breaks, ensure that the employee is relieved of all duty and free to leave the worksite


• Require employees to accurately record all hours worked

Source: Cal Chamber