California Truck Drivers and Meal Breaks

A company’s failure to provide the meal breaks that are required by law can give rise to PAGA penalties.  In 2012, the California Supreme Court clarified some of the basic rules that apply to meal breaks in the seminal case of Brinker Restautant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  A recent case further clarifies how the rules regarding meal breaks apply to truck drivers in California.

In Driscoll v. Granite Rock Company (6th Appellate District, November 30, 2016, case no. H037662) the defendant was a concrete company that manufactures, delivers, and pours concrete.  The defendant hired mixer drivers to deliver the concrete to customers such as home owners and contractors.

The defendant provided its drivers with a handbook that stated that they had the right to take a 30 minute off-duty meal break during which the drivers were not paid.  The defendant also offered its drivers the opportunity to take an on-duty meal break-in other words, a meal break where the drivers kept working and kept getting paid.  On-duty meal breaks are allowed only:

[W]hen the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.

Critically, such agreements must be revocable by the employee at any time.  In Driscoll, the court found that the requirement of one day’s notice to revoke an on-duty meal break agreement violated the requirement that employees be able to revoke such an agreement at any time.

However, the court also found that no driver was ever denied an off-duty meal break if he or she requested it.  Additionally, the defendant allowed drivers to revoke their on-duty meal break agreements as long as they gave at least one day’s notice.  If drivers chose not to sign an on-duty meal break agreement, or revoked their agreement, and missed a meal break, they were paid one additional hour of pay.

Based on these facts, the court found that the drivers had failed to prove that the defendant violated the law with respect to meal breaks.  Specifically, the court found that the drivers had not been forced or coerced into signing the on-duty meal period agreements against their will.  The court also found that the defendant had not interfered with the drivers’ ability to take off-duty meal breaks.

After Driscoll, California drivers who are concerned about their meal breaks should ask the following questions:

1. Does your employer have a policy that provides you with a 30 minute, uninterrupted, off-duty meal break if you work more than 5 hours, and a second meal break if you work more than 10 hours?
   • Are you relieved of all duty during such breaks? If not, there may be a violation.
   • Does your employer have control over you during your meal breaks? If so, there may be a violation.

2. Does your employer do anything to interfere with your ability to take your meal breaks?
   • For example, is your schedule too busy to take breaks? If so, there may be a violation.
   • Does your employer discourage you from taking breaks? If so, there may be a violation.

3. Have you signed an agreement to take on-duty meal breaks?
   • Is there something about your industry that prevents you from being able to take off duty meal breaks? If not, there may be a violation.
   • Can you revoke your off-duty meal break agreement at any time? If not, there may be a violation.

4. Are you paid an extra hour of pay when you miss a meal break? If not, there may be a violation.

The Driscoll case also discusses how the practices of a particular industry may impact the legality of an employer’s meal breaks.  In particular, the court found that the nature of the work (pouring concrete) made it more difficult to schedule off-duty meal breaks because freshly batched concrete must be poured within 60 to 90 minutes in order to insure its structural integrity.  This made it reasonable for the defendant to offer on-duty meal breaks to its drivers.

If you have a question about your meal breaks and/or California’s Private Attorneys General Act (“PAGA”), feel free to contact Hunter Pyle Law for a free consultation.  We can be reached at 510.444.4400, or inquire@hunterpylelaw.com.

Can California Employers Combine Rest Breaks into One Break?

One common source of PAGA penalties occurs when employers fail to authorize and permit the rest breaks that are required under California law.   When this happens, workers can recover one hour of pay at their regular hourly rate for each day they are deprived of one or more rest breaks.  They can also seek penalties under PAGA, as well as their attorney’s fees.

A recent decision by the Second District of the California Court of Appeal clarifies the timing of rest breaks, and whether rest breaks can be combined into a single break.  Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027 involved a class action brought by workers who paint metal parts manufactured in machine shops.  The workers worked eight hour shifts, so they were entitled to two ten minute rest breaks.  EME, the employer, required the workers to take their two rest breaks in one combined break that lasted 20 minutes.

The court looked closely at the language of Wage Order No. 1-2001, which provides as follows:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.

The court also considered the holding in the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  There, the California Supreme Court held that employers could deviate from the preferred course of providing rest breaks in the middle of each work period “where practical considerations render in infeasible.”  The Rodriguez court also noted this critical language from Brinker:

As a general matter, one rest break should fall on either side of the meal break.  Shorter or longer shifts and other factors may alter this general rule.

Id. at 1032.

One of the critical questions resolved by Rodriguez is what the phrase “insofar as practicable” means.  The court interpreted that phrase narrowly, holding that an employer could depart from the preferred schedule only where it could meet two requirements:

1. Departing from the preferred schedule of two rest breaks, with one on either side of the meal break, would not unduly affect employee welfare; and
2. The departure is tailored to alleviate a material burden that would otherwise be imposed on the employer.

The court then turned to the evidence submitted by the parties.  If found that a single declaration submitted by the plaintiff was sufficient to defeat the employer’s motion for summary judgment.  This was somewhat surprising, given that the employer had submitted a large amount of evidence in support of its motion.

The court then turned to the question of whether the term “work period” meant the two work periods that fall on either side of the meal break under the preferred schedule, or something else.  The defendant, along with various employer-side legal organizations, argued that the term “work period” means the entire shift, and that an employer’s only obligation was to ensure that during the entire shift, the meal and rest breaks divide the shift into approximately equal work periods.

The court rejected the defendant’s argument.  Instead, it held that in an eight hour shift with a single meal break, the preferred schedule requires the provision of two rest breaks, with one in the middle of each of the work periods that fall either side of the meal break.

Last, the court considered the issue of under what circumstances an employer can combine two or more rest breaks into one longer rest break.  The court noted only one situation where that type of combination was permissible:  when an employer’s business requires shifts in which the meal break must be taken soon after the workers start their shifts.  (One example of this type of situation might be in a restaurant where the waitstaff eat their meals before the rush of customers makes it impossible to take breaks.)

Rodriguez thus establishes that employers that choose to depart from the standard meal and rest break schedule must be two relative stringent requirements.  Otherwise they will face significant liability under California’s wage and hour laws.

If you have questions about the meal or rest breaks at work, please feel free to contact Hunter Pyle Law for a free consultation.  We can be reached at inquire@hunterpylelaw.com or 510.444.4400.

Piece-Rate Workers and California Law

Some California employers pay their workers by the piece.  In other words, the workers do not get an hourly rate. Rather, they get a certain amount of money per item of whatever it is that they are producing.

While piece-rate compensation is legal in California, it is subject to certain requirements.  These requirements are set forth in Labor Code section 226.2.

Section 226.2 defines the term “other nonproductive time” as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.”  As explained below, piece-rate workers must be paid separately for their nonproductive time.  Piece-rate workers must also be paid separately for overtime and rest breaks. 

For example, section 226.2(a)(1) explicitly provides that piece-rate employees must be  “compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation.”

Furthermore, employers must provide specific information to piece-rate workers in the workers’ itemized wage statements, which are required by Labor Code section 226.  Section 226.2(a)(2) reads as follows:

The itemized statement required by subdivision (a) of Section 226 shall, in addition to the other items specified in that subdivision, separately state the following, to which the provisions of Section 226 shall also be applicable:

(A) The total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period.

(B) Except for employers paying compensation for other nonproductive time in accordance with paragraph (7), the total hours of other nonproductive time, as determined under paragraph (5), the rate of compensation, and the gross wages paid for that time during the pay period.

An employer who fails to meet these requirements may be liable for penalties under Labor Code section 226(e) and (via PAGA) under Labor Code section 226.3.

Section 226.2(a)(3) further requires that employers pay piece-rate employees for their rest periods at their regular hourly rate, or the applicable minimum wage, whichever is higher.

Thus, if you are paid by the piece, you should check your wage statements to see if they comply with the law.  You should also be sure that you are being paid separately, and by the hour, for your rest breaks and your nonproductive time.  (You are entitled to one ten minute rest breaks if your shift is between 3.5 and 6 hours long, two such breaks if your shift is between 6.01 and 10 hours long, and three such breaks if your shift is more than 10 hours long.)  If your employer fails to pay you for these breaks, it may also be liable for penalties and liquidated damages that can add up quickly.

Piece-rate workers are also entitled to be paid separately for overtime.  In California, overtime is any work performed over 8 hours in a day, and over 40 hours in a week.  (This is true unless the employee has entered into a valid agreement for the payment of overtime on the basis of each piece produced during overtime hours.  See 29 C.F.R. § 778.418.)

The overtime rate for a piece-rate worker is calculated by determining the worker’s regular rate.  This is done by dividing the total amount earned by the total number of hours worked in a particular week.  Thus, if a piece-rate worker earned $600 in a 60 hour week, her regular rate would be $10 per hour.  The regular rate is then multiplied by .5 to get the overtime rate.  Here, that figure would be $5.  The overtime rate is then multiplied by the number of overtime hours to arrive at the amount that the piece-rate worker must be paid above and beyond her piece rate.  See 29 C.F.R. § 778.111.  The DLSE Manual also has a good discussion of this formula.  See § 49.2.1 (2005 edition).

Piece-rate workers thus have many protections under the California Labor Code.  If you are a piece-rate worker, check to be sure that you are being paid every dollar that you are owed.

The attorneys at Hunter Pyle Law have handled both individual and class action claims on behalf of piece-rate workers.  If you are paid by the piece, and have questions about your paycheck, please feel free to contact us for a free consultation at 510.444.4400, or inquire@hunterpylelaw.com.

Perez v. U-Haul: Employers cannot compel arbitration of standing issue in PAGA cases

Some companies continue to try to force employees to arbitrate their individual PAGA claims before bringing their representative PAGA claims in court.  Two appellate decisions make it crystal clear that California courts have rejected these efforts, and that workers are not required to litigate PAGA claims in multiple forums.

By way of background, in Iskanian v. CLS Transportation, the California Supreme Court held that employers could not compel plaintiffs to arbitrate their representative PAGA claims.  In the wake of that case, some defendants began to argue that where workers had signed an arbitration agreement, they should be required to arbitrate their individual claims before proceeding with their representative claims in court. (more…)

California Wage Statements and Exempt Employees

California Labor Code section 226 requires that an employer provide its employees with wage statements, sometimes known as pay stubs, when it pays their wages.  Section 226(a) provides a list of the specific information that must be included in wage statements.  Employers that ignore these requirements face liability both under section 226(e), and, through PAGA, under section 226.3.

One of the requirements of section 226(a) is that the employer state the total number of hours that an employee worked.  This requirement is important for most employees, because it is the most effective way to figure out whether you are paid for all hours worked.  But what about employees who are not paid by the hour, like salaried employees or employees who are paid on a commission basis? (more…)

PAGA and Intervention: Replacing a Plaintiff Who Wants Out

One of the seminal cases in the world of California’s Private Attorneys General Act, or PAGA, is Iskanian v. CLS Transportation.  Iskanian wound its way up to the California Supreme Court, which ultimately held that arbitration agreements that attempt to limit a plaintiff’s right to bring PAGA actions are unenforceable.

Now Iskanian is back in the news.  After years of struggle, the plaintiff, Mr. Iskanian, decided that he did not want to proceed with the case.  (It is unclear why he reached that decision.)  In an interesting twist, he then filed a motion, representing himself, to dismiss his individual claims (which were being arbitrated) as well as his PAGA claims.  His attorneys then sought to replace him with Mr. Frost, another individual from the group of limousine drivers that Mr. Iskanian belonged to.   (more…)

New PAGA Rules Take Effect July 1, 2016

Governor Jerry Brown’s budget for 2016-17 contains several significant amendments to the procedural requirements of the Private Attorneys General Act, or PAGA.  These amendments apply to PAGA cases filed on or after July 1, 2016.  They are limited to cases alleging violations of the California Labor Code provisions listed in Labor Code section 2699.5.

The amendments fall into four large categories:  (1) the cost and procedure for filing a PAGA action; (2) the timing of PAGA actions; (3) what information and documents must be provided to the Labor and Workforce Development Agency, or LWDA; and (4) the procedure that an employer must follow to cure PAGA violations.  Each amendment goes into effect on July 1, 2016, and does not affect PAGA notices filed before that date.

First, PAGA notices will require a filing fee of $75, and must be submitted both online and by certified mail.

Second, the LWDA, will have longer to review PAGA notices in order to decide whether to investigate the allegations.  If the LWDA does not intend to investigate, it shall notify the employer and the employee within 60 days of the postmark date of the PAGA notice.  If the LWDA does not provide any such notice, plaintiffs must wait until 65 days after the postmark date of the notice to file suit.  (The current rule is 33 days.)

If the LWDA intends to investigate a PAGA complaint, it has 65 days from the postmark date of the notice to inform a plaintiff and his or her employer that it intends to do so.  The LWDA then has 120 days to conduct that investigation.  The 120 day period can be extended by an additional 60 days.

Third, a plaintiff will need to serve the LWDA with a copy of his or her PAGA complaint.  And, if  the plaintiff settles his or her PAGA claims, the plaintiff must notify the LWDA of that settlement by providing a copy of the proposed settlement.  That must occur when the plaintiff notifies the court of the settlement in order to seek approval under Labor Code 2699(l).  (That section requires a court to review and approve any proposed PAGA penalties.)  The plaintiff must also provide a copy of any order that denies or approves any PAGA settlement to the LWDA.

Finally, any employer that seeks to cure any PAGA violations must submit its notice electronically.

These amendments follow on the heels of AB 1506, which, as of October 2015, permit employers to cure certain defects on the wage statements that they issue to their employees.  In particular, employers are given 33 days to cure defects regarding the dates of the period for which the employees are paid.  They can also cure defects regarding the name and address of the employer.  However, the burden on an employer seeking to cure these defects is significant:  it must provide fully compliant wage statements to each aggrieved employee for each pay period during the three years prior to the date of the notice to the LWDA.

Significantly, the new amendments do not contain additional funding for the LWDA to increase its involvement in PAGA actions.  As a result, at least for the immediate future the responsibility for enforcing PAGA claims will continue to rest with plaintiff side employment attorneys.

Is Your Employer Required to Provide You With a Seat?

California employers require many employees to stand all day, despite the fact that they could provide seats if they wanted to.  This practice is common in the retail industry, among others.  But is it legal?

For certain employees, under certain circumstances, the answer is no.  Many of the California wage orders contain language requiring that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  They also provide that “[w]hen employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

When an employer fails to meet either of these requirements, it may be subject to penalties under California’s Private Attorney General Act (“PAGA”).  Although the wage orders themselves do not provide for penalties for violating seating requirements, California Labor Code section 1198 prohibits employers from violating the wage orders.  PAGA permits employees to bring claims for civil penalties based upon violations of the Labor Code.  Therefore, employees can bring PAGA claims for failure to provide suitable seating in violation of the wage orders. (more…)

The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?

Two questions have bedevilled practitioners representing workers in California ever since the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court in 2012:  In a shift that qualifies for two rest breaks and one meal break, are employers required to provide one rest break before the meal break and the other one after?  And, on a related note, can an employer combine multiple rest breaks into one long rest break?

In Rodriguez v. E.M.E., Inc. (April 22, 2016), the employees worked eight hour shifts.  The defendant provided them with one meal break and one 20 minute rest break that fell either before or after the meal break.  The Second District Court of Appeal used this scenario to provide some critical guidance with respect to when and how employers must schedule rest breaks. (more…)

Removability of PAGA actions to Federal Court

This blog is the third in a series regarding recent PAGA jurisprudence.  It focuses on developments regarding the removability of PAGA claims to federal court. (more…)