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Meal Or Rest Period Violation Premium

As a general rule, California employers must allow their employees two 10-minute rest periods and a 30-minute meal period during a regular work day. If the employer does not do so, under Labor Code section 226.7, it “shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” A recent case against United Parcel Service decided that an employee may recover up to two premium payments per work day — one for any meal period violation and one for any rest period violation.

In United Parcel Service, Inc. v Superior Court, No. B227190 (Feb. 16, 2011), UPS argued that the phrase “for each work day” meant that only one premium payment was due for any work day, no matter how many violations there were. The Second District Court of Appeal disagreed, holding that the phrase “meal or rest period” authorized an award of one premium payment per work day for any meal period violations, and an award of an additional premium payment per work day for any rest period violations. In a case brought by a single employee, the consequences of the ruling would be insignificant, an award of two hours of pay as opposed to one hour of pay. But, in a wage and hour class action, the numbers will add up.

The Court subsequently granted rehearing, and then issued a new opinion on June 2, 2011, adhering to its view that the Labor Code authorized one premium payment per work day for meal period violations, and another for rest period violations. The new opinion is available here.

To reduce liability, employers should monitor compliance with the meal and rest period rules. If a violation is discovered, the employer should consider self-assessing the premium payment. If it does not, any employees who do not receive their breaks will have four years within which to assert their claims, during which time interest will accrue. For any employee who quits or is fired, the employer will also be subject to additional waiting time penalties under Labor Code section 203 for not paying wages on time. That is because the California Supreme Court ruled in 2007 that premium pay under section 226.7constitutes wages. See Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 155 P.3d 284 (2007).