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Missed Meal Break Claims Results in Multiple Violations

Almost every wage and hour lawsuit and Labor Commissioner claim that I’ve seen in the past 10 years has included a claim for missed meal and/or rest breaks. Employers who fail to provide at least one half-hour unpaid meal break whenever an employee works more than 5 hours is liable for one hour’s pay at the employee’s regular rate of pay. As Kaanaana v. Barrett Business Services, Inc. reveals, the “premium pay” is not the only liability.

Sometimes the employer has no record of the hours worked. This is problematic because the Labor Code and the Wage Orders require employers to maintain accurate records of the hours worked, including the times when lunch breaks begin and end. When an employer fails to maintain accurate records of the hours worked, the employee’s testimony alone is sufficient to establish the number of hours worked. This means an employee who testifies she did not receive a full half-hour lunch break will likely carry the day unless the employer has specific evidence to rebut the employee’s testimony.

Sometimes the employer allows employees to take the lunch but does not require the employee to clock out for lunch breaks. Instead, the employer automatically deducts a certain amount of time from the employees hour. This is problematic because the time records are not accurate, which means we default to the employee’s testimony. We have no way of showing how long the break lasted. The court may be required to base its decision on the employee’s testimony.

But what happens when the employer records show the employee clocking in and out for lunch, but the meal break is less than the full 30-minutes? In Kaanaana, the time records showed the employee breaks oftentimes were only 26-minutes because the supervisors gathered the workers before the break ended to ensure they were back at the line within 30 minutes.

The employees filed a class action lawsuit alleging they were owed the premium pay under Labor Code 226.7 because they did not receive the full 30-minute meal period. The employees also argued that because the meal period was “truncated,” it was an “on-duty meal period,” and the employer should pay for the entire 30-minute meal period. The employees sought liquidated damages under Labor Code 1194.2 for failing to pay minimum wage for the entire meal period and “waiting time” penalties under Labor code 203 for failing to pay all wages owed at the end of the employment. Finally, the employees sought PAGA penalties for the missed meal breaks.

The employer argued the employees were only entitled to the premium pay. Barrett Business Services argued the few minutes missed were de minimus, and therefore not compensable.

The court concluded the employees were not entitled to payment for the entire meal period, but were entitled to payment for the 3 to 5 minutes they actually worked during the meal period:

the right to be free from employer control for a 30-minute meal period, and the right to be paid for time worked during that meal period, are distinct rights with distinct remedies. The remedy for an employer violation of the former right is the hour of premium pay provided under section 226.7. The remedy for the latter is payment of wages for time worked (see § 1194), along with any applicable penalties for the failure to pay for time worked when the wages were due. But we find no persuasive basis in legal authorities to support plaintiffs’ claim that their remedy for time worked during the meal period is payment of wages for the full 30-minute meal period, rather than payment of wages for the three to five minutes actually worked.

While acknowledging that the Wage Order could be interpreted to require payment for the entire meal period, the court believed “that a truncated meal period, such as occurred in this case, is not in every case the equivalent of an on-duty meal period.”

The court determined the employees could recover liquidated damages for the 3 to 5 minutes the employees worked during the lunch break, and the employees could recover waiting time penalties since the employees worked time (albeit just a few minutes) without compensation.

The court remanded the case back to the trial court to determine what PAGA penalties to award, but reminded the court that the court could award less than the full PAGA penalties “if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.”

In February 2019, the California Supreme Court granted review of Kaanaana v. Barrett Business Services, Inc., but on a different issue.

I have some suggestions for employers that want to avoid meal break problems, or at least provide a defensible position if a dispute arises:

  • Make sure employees are afforded and take the full 30-minute meal period.
  • Publish the company’s official–and compliant–meal and rest break policy.
  • Keep accurate records of hours worked including meal breaks.
  • Never automatically deduct time from an employee’s record of hours worked. Only deduct time if the employee confirms (preferably in writing) the employee forgot to clock out.
  • Never require employees to return to work from their breaks early. Err on the side of granting more time than required.

If you have questions about implementing or enforcing appropriate workplace policies, or if you believe your company is not complying with the law, the Nuddleman Law Firm, P.C. represents employers and employees in variety of employment matters including meal and rest break claims. Contact our office for more information.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Presentation at EB Low Cost Ed Day

On Saturday, October 29th, I’ll be conducting a presentation at CalCPA’s East Bay Low Cost Ed Day. I’m looking forward to the presentation, where I will discuss Wage & Hour Best Practices – How to Best Advise Your Clients in this Complex Area.

Presentation Topics

  •   Employees v. Independent Contractors
    • Differences
    • Consequences of Misclassification
  •  Applicable laws & Agencies
    •  State v. Federal v. City/County
    • IWC & Wage Orders
    • City/County Ordinances
    • Opinion Letters
    • Enforcement Manual
  • Basic Pay Requirements
    • Minimum Wage
    • Regular “Workdays” and “Workweeks”
    • Regular Rate of Pay
    • Overtime
    • Bonuses & Commissions
  •  Exempt & Non-Exempt Employees
    • Nonexempt Employees
    • Exempt Employees – salary + duties
  • Meal and rest periods
  • How/when to pay employees
    • Time record requirements
    • Pay stub requirements
    • Deductions from pay
    • Payment upon separation
  • Employees In or About the Home
    • Caregivers
    • Other Household Employees
    • Special Rules for Live-Ins

I will be presenting from 1:00 p.m. to 2:40 p.m. at the Crow Canyon Country Club. You can register here and the event is open to members and non-members.

I hope to see you there.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Attorney’s Letter Did Not Comply With PAGA Notice Requirements

The Ninth Circuit Court of Appeals recently held, in Alcantar v. Hobart Service, that an attorney’s letter did not comply with PAGA notice requirements, and therefore dismissed plaintiff’s PAGA claims.  According to the court, “the letter in which plaintiff disclosed his allegations against the employer did not contain sufficient facts to comply with the statute’s notice requirements.”

PAGA allows an employee to bring an action against an employer to recover civil penalties for violations of the California Labor Code. Cal. Lab. Code § 2699(a). This powerful statute allows plaintiffs to bring claims on behalf of other aggrieved employees, without requiring the employee to follow typical class action protocols.

PAGA Requires Written Notice of Facts and Theories

Shortly after PAGA was passed, the legislature amended the statute to cure perceived abuses of the Act. Before filing a lawsuit, the employee must give “written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of [the California Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3(a)(1). This provides the LWDA and the employer an opportunity to review the allegations and determine whether a violation has occurred and to assess the seriousness of the allegations.

Attorney’s Letter Did Not Comply With PAGA Notice Requirements

After Alcantar filed suit seeking compensation for his commute time and for missed meal and rest breaks, the employer argued that the attorney’s letter did not comply with PAGA notice requirements. The court agreed.

Alcantar’s letter contained a series of legal conclusions, but no facts or theories:

Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay Plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code section 226; (5) failed to provide reimbursement for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5.

The court held “[t]he only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code…” and determined “[t]his is insufficient.”

Plaintiff’s letter—a string of legal conclusions with no factual allegations or theories of liability to support them—is insufficient to allow the Labor and Workforce Development Agency to intelligently assess the seriousness of the alleged violations. Neither does it provide sufficient information to permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight.

The court specifically referenced an unpublished opinion, Archila v. KFC U.S. Properties, Inc., 420 F. App’x 667, 669 (9th Cir. 2011), in which the court affirmed a district court’s dismissal of a PAGA claim, observing that “none of the materials Archila submitted to KFC or the LWDA contain ‘facts and theories’ to support his allegations” and the demand letter “merely lists several California Labor Code provisions Archila alleges KFC violated and requests that KFC conduct an investigation.”

Because Archila was unpublished, it carried little if any weight, and employers could not cite to Archila.  Alcantar may have revived Achila.

Employees must provide sufficient facts and theories in their PAGA notices to allow the employer and the LWDA to assess the seriousness of the alleged violations and provide sufficient information to permit the employer to determine what policies or practices are being complained of. Employers should carefully review any PAGA notice to ensure it states the facts and theories upon which the claims are based. If the PAGA notice does not contain sufficient facts to comply with the PAGA notice requirements, the employer may be able to dismiss the PAGA claim.  Alcantar is not entirely binding, however, since it is a Ninth Circuit decision interpreting California law.  We’ll have to wait and see if any California courts follow Alcantar’s reasoning.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.