California Apparel News

The controversy surrounding California’s meal and break periods has gotten more heated with recent conflicting court rulings. An inconsistency between the state’s labor code and wage order are at the crux of the issue.

Depending on the interpretation of the codes, employers must require employees to take scheduled mealtime breaks or they can merely provide the opportunity for employees to take a break, leaving the timing of the break (and the option not to take one) to individual employees.

The California Labor Code stipulates that “an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.”

The term “provide” is not clarified in the labor code.

However, the state’s Industrial Wage Commission’s wage order states: “No employer shall employ any person for a work period of more than five hours without a meal period of not less than 30 minutes.”

Proposed regulations by the state’s Division of Labor Standards that would have given the responsibility for mealtime breaks to employees were abandoned by Gov. Arnold Schwarzenegger’s administration in January. Instead, they will rewrite the rules from scratch some time in the future.

At stake for employers are the potential penalties involved with mealtime violations. The California Labor Code’s section 226.7(b) stipulates that if an employer fails to provide an employee a meal period or rest period, the employer shall pay the employee an additional hour of pay for every workday a meal or rest period was not provided. Adding to the confusion is the debate over whether that hour of pay constitutes a penalty or a wage. If the pay is deemed a wage, the statute of limitations for employees to sue for payment is four years. If the pay is deemed a penalty, the statute of limitations is shortened to one year.

Concerned employers gathered Feb. 15 at the law offices of Manatt, Phelps & Phillips in Los Angeles to discuss the issue at one of the firm’s Employment & Labor Group breakfast briefing meetings. Stan Levy, a lawyer specializing in employment and labor, discussed recent lawsuits concerning possible mealtime violations that have reached California courts—and may ultimately decide the penalty vs. wage debate.

A Nov. 23 court ruling in the Caliber Bodyworks vs. Superior Court case indicated that the hour of pay required for mealtime violations is considered a penalty, curbing the statute of limitations to one year. The ruling seemed to clarify the issue and two subsequent court cases (including a suit filed against Kenneth Cole Prods. in San Francisco) have since concurred with the case.

However, one ruling in January in the case of National Steel and Shipbuilding Co. vs. Superior Court in San Diego disagrees, calling the pay a wage. “That case is probably going to be appealed to the California Supreme Court,” Levy said.

With uncertainty still in the air, Levy encouraged employers looking to protect themselves against mealtime violation lawsuits to require and enforce mealtime breaks. “Have a time-clock system to track meal breaks,” he said. He also encouraged employers to maintain good time records of employees’ breaks and work hours. —Erin Barajas