Meal Break Violations in California: The First 5 Hours Rule and the Importance of Time Keeping Records

Gear and Gavel

This post explores two questions that arise with respect to meal break laws in California: What is the “first five hours” rule, and what role do an employer’s time keeping records play in meal break lawsuits. As explained below, the California Supreme Court has resolved these questions in a way that protects workers and ensures that they get the meal breaks that they are entitled to under law.

The First Five Hours Rule

The first five hours rule is pretty simple. Under normal circumstances, if an employee works more than five hours in a workday, an employer must provide a 30 minute, uninterrupted meal break. In the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1042 (Brinker), the California Supreme Court clarified that this meal period must occur within the first five hours of work.

That holding in Brinker is grounded in California Labor Code section 512(b), which provides as follows:

Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.

The language in section 512(b) thus indicates that section 512(a) was intended to mandate that the first meal period ordinarily occur during the first five hours of work. Otherwise, there would be no reason for section 512(b). As the Court concluded, “Accordingly, first meal periods must start after no more than five hours.” Id.

The Role of Employer Time Keeping in Meal Break Cases

In the more recent case of Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, the California Supreme Court considered the important question of what role employers’ time keeping records play in meal period litigation. There, the Court adopted “in full” the concurring opinion of Justice Kathryn Werdegar in Brinker, holding that employers have an obligation “both to relieve their employees for at least one meal period for shifts over five hours” and, critically,  to record having done so.

Justice Werdegar’s concurrence is consistent with a long history of requiring employers to keep certain records regarding their employees and to face certain consequences if they fail to do so. Both the United States Supreme Court and California courts have adopted this approach. See, for example,  Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 686–688; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1536, fn. 11;and Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961 (“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.”).

In Donohue, the California Supreme Court took this analysis one step further. There, the Court explained that if an employer’s time keeping records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided. 11 Cal.5th 58.

What This Means for You

If you are working shifts that are longer than five hours, then you are entitled to a 30 minute uninterrupted meal break. That meal break must come within the first five hours of your shift. Otherwise, your employer is breaking the law and you are entitled to compensation at the rate of one hour of your regular rate of pay for each workday where the violation occurs.

Furthermore, if your timekeeping records show either no meal breaks or short meal breaks within your first five hours of work, then that will serve to create a rebuttable presumption that you did not receive a meal break as required by law. In other words, it will be very difficult for your employer to show that you were offered a meal break but decided to waive it.

The attorneys at Hunter Pyle Law have handled meal break claims throughout California, from San Diego to Los Angeles to Oakland and San Francisco to Sacramento. If you have questions about your meal breaks at work, feel free to contact us at inquire@hunterpylelaw.com or at (510) 444-4400.

Minimum Wage, Public Employees, and the University of California

The University of California (referred to in this post as “the Regents”) employs more than two hundred thousand people. Determining which laws apply to the Regents can be challenging. Gomez v. Regents (2021) 63 Cal.App.5th 386 provides some guidance with respect to California’s wage and hour laws.

In Gomez, the plaintiff challenged the Regents’ policy and practice of rounding time punches (usually down) and automatically deducting 30 minutes for meal periods regardless of whether the employees actually took them. The issue before the court was whether the Regents were subject to California’s minimum wage laws. The superior court held that they were not, and dismissed the case. The court of appeal affirmed.

The court of appeal began its analysis by noting that California’s minimum wage requirements apply to employees of the State and its political subdivisions, including cities, counties, and special districts. However, the court concluded that the Regents is not a political subdivision. Rather, it is a public trust. See People v. Lofchie (2014) 229 Cal.App.4th 240, 254.

The Gomez court then distinguished the Regents from other types of political subdivisions in California. For example, in Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, the Second District Court of Appeal had concluded that minimum wage laws applied to California Charter cities, because:

[L]legislation setting a statewide minimum wage, generally applicable to both private and public employees, addresses the state’s interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families.

However, the Gomez court noted that the Regents are not a charter city, and that there were no allegations that the Regents had set hourly wages below the state minimum wage. Accordingly, it concluded that Marquez did not apply.

The Gomez court also addressed Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289. In that case, the court of appeal concluded that minimum wage laws applied to a regional occupational program established by a public school district. Unlike the Regents, such entities are political subdivisions because they were established under Education Code section 52301.

Finally, the Gomez court concluded that the Private Attorneys General Act (“PAGA”) did not apply, because the Regents could not be considered to be violators under that statute. See Labor Code § 2699(c).

Accordingly, California’s minimum wage laws do not apply to employees of the Regents. However, all is not lost. The Fair Labor Standards Act, or FLSA, applies to public employees.  FLSA is a federal law dating back over half a century which establishes certain minimum requirements for employees’ hours of work, wages, premium overtime and payroll records. To be clear, the federal minimum wage is much lower than California’s. Furthermore, unlike California law, the FLSA does not require employers to provide meal or rest breaks.  Nor does it require that employers pay overtime if employees work more than eight hours in a day.  (California law does.  See Labor Code § 510.)

The attorneys at Hunter Pyle Law represent both public and private employees in individual and class actions throughout California.  If you have a question about your situation at work, please feel free to contact us for a confidential initial intake.  We can be reached at (510) 444-4400 or inquire@hunterpylelaw.com.

Opposing Voter Suppression — The Battle for Georgia

I am writing this from the airport in Atlanta, where I have spent the past five days doing my best to help make sure that the Georgia Senate runoff elections were fair and that all votes were counted. The experience was both inspiring and chilling, so I am going to jot down some thoughts before the press of business and family in the “real world” re-consumes me.

First off, a disclosure: I believe very strongly that the voting process should be as easy as possible. In college (before the internet ruled our lives), I volunteered for a small organization that was trying to get the local city council to adopt a measure that would study, and, hopefully, implement a process by which voters could cast their ballots by telephone. That’s right: pick up the phone, enter your id, cast your vote, and, presto! You are done. No line, no worrying about signatures, no hassle. Despite our best efforts, and many long hours spent gathering signatures in the frigid Colorado winter, the effort failed. (Its leader, a fellow nicknamed “Evan from Heaven,” then went back to busking on the local pedestrian mall.) (more…)

California Resident Managers’ Workplace Rights

Live-in resident managers face a unique challenge: their bosses are often also their landlords.

California law requires an individual to live on the premises if a building has sixteen (16) or more units. Cal. Code Regs. tit. 25, § 42. These individuals are often referred to as resident managers. Resident managers carry out various job duties, including but not limited to, collecting rent, assisting tenants, facilitating repairs, and attending to emergencies in the building.

This makes resident managers especially vulnerable to workplace violations such as wage theft and retaliation. In most instances, when resident managers are fired, their landlord can evict them immediately.

This is because housing protections that apply to tenants do not usually apply to resident managers, who are often considered to be “licensees”.

Employers therefore often use the threat of losing one’s housing to keep resident managers from complaining about mistreatment at work. However, the law protects resident managers from this sort of retaliation.

Resident managers should be aware of the rights they have to be (1) paid correctly; and (2) protected from retaliation if they complain that they are not.

Resident Managers Should Keep Track Of All Hours Worked.

In the case of resident managers who are required to reside on the employment premises, “hours worked” means “that time spent carrying out assigned duties shall be counted as hours worked”.

Wage Order 5 § (2)(k). For resident managers, “hours worked” does not include on-call time, but only “time spent carrying out assigned duties” for resident managers. Isner v. Falkerberg, 160 Cal. App. 4th 1393, 1399 (2008).

Although resident managers generally bear the burden of proving the hours they work, the burden shifts when the employer has failed to keep accurate records.  Under California law, where the employer has failed to keep statutorily mandated time records, the burden then shifts to the employee for a best faith estimate of the hours they worked. Hernandez v. Mendoza, 199 Cal. App. 3d 721, 727 (1988).

Resident managers should keep track of all time they spend working, even if their employer does not require them to complete time records.

Employers Must Pay Resident Managers For All Hours Worked.

A resident manager must be paid at least the minimum wage for all hours worked. See Lab. Code  § 1197; Wage Order 5 § 4. Resident managers may not enter into an agreement to work for less than the minimum wage.  Lab. Code § 1194(a).

Unique Wage And Hour Laws Apply To Live-In Resident Managers In California.

There are two common ways employers pay resident managers: (1) using the value of the resident manager’s rent to pay their wages (also called a “rent credit”); or (2) offering the resident manager reduced rent. In each case, the employer must always provide the resident manager a paystub.

However, employers often do not follow the law to pay resident managers correctly.

When an Employer Can Use the Value of Rent to Pay a Resident Manager’s Wages (Also Known as a “Rent Credit” or “Lodging Credit”).

An employer may only use the value of rent to pay a resident manager’s wages if:

Wage Order 5 § 10(C).

For example, a resident manager who works 40 regular hours in a week in San Francisco is entitled to be paid at least the minimum wage (currently $15.59 per hour) for the work performed. Therefore, in this example, the resident manager must be paid a total of $623.60 for that week (40 hours x $15.59).

However, if the resident manager is provided with a room that is occupied alone, the employer may only credit a maximum of $61.13 in rental value to the resident manager’s wages. Therefore, the employer must still pay the resident manager $562.47 in wages for their work ($623.60 – $61.13).

Legal Requirements in Order to Charge a Resident Manager Rent

Employers may charge a resident manager rent if:

See Lab. Code § 1182.8.

For example, if an employer charges a resident manager 2/3 of the fair market rental value, then the employer must pay the resident manager all of their wages, in full, in a separate paycheck. That means the employer cannot apply any “rent credit” to pay the resident manager’s wages, as discussed above.

See Wage Order 5 § 10(E).

Employers May Not Retaliate Against Resident Managers Who Speak Out About Their Legal Rights

The law protects resident managers from retaliation if they complain that they are owed wages or about other workplace violations. See Lab. Code §§ 98.6, 1102.5(b). Employers are liable for penalties of $10,000 per employee per violation, and other damages, for retaliatory conduct.

If you have been subject to wage theft or retaliation in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

Disabled Prison Guard Wins his Third Appeal Against the California Department of Corrections and Rehabilitation

 

Courts can award attorneys’ fees to the prevailing plaintiff in a discrimination or harassment claim brought under the Fair Employment and Housing Act (FEHA).  These attorney fee awards are designed to incentivize and reward a plaintiff’s counsel for litigating a civil rights case that is generally taken on a contingency fee basis and therefore has inherent risks.  Trial courts first calculate the lodestar amount, which is the product of the hours spent and the prevailing hourly rate of attorneys in the community conducting similar non-contingent litigation.  Then courts can increase this amount by adding a multiplier or increasing the lodestar amount by looking at various factors, such as the risk of non-payment, the public interest in advancing civil rights cases, the complexity of the issues involved, and the skill of the attorneys.  (more…)

Expanded Rights for Employees during the COVID-19 Pandemic

The U.S. Department of Labor posted a temporary rule on April 1, 2020 that provides most employees impacted by the coronavirus with some much-needed benefits under the Families First Coronavirus Response Act (FFCRA).  These benefits include public emergency health leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to help out families dealing the effects of COVID-19.

Under FFCRA, employees who work for employers with less than 500 employees will be qualified for paid sick leave if an employee is unable to work or telecommute for one of the following reasons:

The FFCRA provides that employees are be entitled to up to 80 hours of paid sick leave at the employee’s regular rate of pay or minimum wage.  Paid sick leave benefits under the FFCRA cannot exceed $511 per day or $5,110 total.  If employers already have sick leave in place, they must provide the FFCRA sick leave in addition to the existing leave.

In addition to paid sick leave, an employee may also get an additional ten weeks of leave to care for an individual who has been quarantined, or to look after a child whose school or daycare is closed or unavailable due to reasons related to COVID-19.  Employees would receive two-thirds of the employee’s regular rate of pay while on this extended leave or up to $200 per day or $10,000 total.

Employers with less than 500 employees are generally covered by FFCRA.  Small businesses with fewer than 50 employees may be exempt from providing its employees with leave if a school or daycare is closed if the leave would jeopardize the viability of the business.  These small businesses would have to apply for an exemption with the Department of Labor.

Employees of the federal government are entitled to FMLA leave, and are thus not covered by FFCRA.  However, such employees are covered by the paid sick leave provision.

Part-time employees are eligible for a paid two week leave for the number of hours they worked on average in a two week period.

Employers are required to post a notice about employees’ rights under the FFCRA.

The temporary rule is in effect from April 2, 2020 until December 31, 2020.  Paid sick leave provided under FFCRA does not carry over from one year to the next.  Employees are also not entitled to reimbursement for unused leave upon separation from employment.

If you feel that you have issues related to taking leave in the workplace, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.  The attorneys and staff at Hunter Pyle Law are continuing to work remotely and take employee-related inquires by phone and email.

 

 

Meal Breaks and Rest Breaks: Guidance from the Second DCA

Gear and Gavel

Cacho v. Eurostar, Inc. (2019) 43 Cal.App.5th 885, provides some guidance regarding when courts will and will not certify class actions claiming failure to provide meal breaks and/or failure to authorize and permit rest breaks under California law.

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Employer Not Liable for an Accident Caused by its Employee

Lake MerrittKim Rushton, an employee of the City of Los Angeles (City of LA), struck and killed a pedestrian, Ralph Bingener, while commuting to work.  Mr. Rushton, a 68-year old man with neurological conditions, worked as a chemist in a water quality lab checking water for semi-volatile organic compounds.  He did not use his car for his employment.  All of Mr. Rushton’s work was performed at the lab and he rarely left the plant for work-related travel.  (more…)

Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes

Gear and GavelAs an employee, there may be times when you need an accommodation in the workplace due to a disability.  Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process.  How specific do the doctor’s notes need to be?  A recently published case provides some insight into this question.

Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012.  In 2013, he requested to work in a quiet place that allowed him to focus and concentrate.  (more…)

San Francisco State University Professor Prevails on Retaliation Claim

San Francisco State University (SFSU) hired Rashmi Gupta in 2006 as a tenure track assistant professor in the School of Social Work.  Generally, tenure track professors work for a six year term.  After that, SFSU decides whether or not to promote a tenure track professor to the position of associate professor and award lifetime tenure.

Dr. Gupta initially faced some hurdles when she began teaching at SFSU.  Her student evaluations were lower than average; however, Dr. Gupta was praised for her efforts in research, scholarship and publication.  By 2009, Dr. Gupta had overcome her initial challenges and was receiving positive reviews from students and peer evaluators.

In 2009, Dr. Gupta and several other women of color in the School of Social Work lodged a complaint with the provost to express their concerns about the abuse of power, bullying, micromanagement and a hostile work environment at SFSU.  At a follow up meeting, the women expressed concern about the Director of the School of Social Work, and more generally, about discrimination against people of color on campus.

Less than two months after Dr. Gupta lodged her complaints, she received a negative performance review.  Many of the criticisms in the review were inaccurate.  Dr. Gupta then emailed a colleague complaining that SFSU was hostile toward women of color, and named two individuals for creating the hostile work environment, Don Taylor and Rita Takahashi.  At a meeting in March 2010, Dr. Taylor told Dr. Gupta that he knew about the emails, and threatened “to get even with [her].” (more…)