Authored by Laura Reathaford

What is at stake for employers if their employees miss a meal break and a rest break in the same workday?  Labor Code Section 226.7 provides a remedy for employees who miss their meal and/or rest breaks: “one hour of additional pay…for each workday that the meal or rest period is not provided.”  However, few have understood whether this means an employer must pay one hour of pay for a each meal and rest period that is missed in a workday or whether only one hour of pay is due for each workday that any number of meal or rest periods are missed.

On February 16, 2011, the California Court of Appeal in UPS v. Superior Court, finally provided an answer: the Labor Code permits up to two hours of pay per work day – one hour of pay for any number of missed meal periods and one hour of pay for any number of missed rest periods in a workday.

Before the UPS decision, employers were able to rely on a favorable published decision from the District Court for the Central District of California finding that only one hour of pay was due regardless of how many meal or rest breaks were missed: Corder v. Houston’s RestaurantCorder and its progeny, stood alone on this topic for three years until Judge Pregerson, also of the Central District, rejected Corder and came to the opposite conclusion in Marlo v. United Parcel Service.  Judge Pregerson, in an unpublished decision, held that employers are liable for one hour of pay for each type of violation listed in the statute – – one hour of pay for any missed meal breaks and a second hour of pay for any missed rest breaks in a workday.

While California courts do not typically consider federal district court decisions when interpreting California law, in UPS, the appellate court was so persuaded by the reasons in Marlo that it not only cited to Marlo for it’s ultimate conclusion but it discussed Judge Pregerson’s decision in detail, ultimately adopting his reasoning in its entirety.  The Court, like the court in Marlo, held that since the IWC wage orders provide separate remedies for violations of meal or rest break requirements, this indicated an intent by the Legislature that one hour of pay for each type of violation is expected under the Labor Code.  The Court also noted that, as a matter of public policy, employers should be incentivized to compensate employees for each type of violation which occurs.  To hold otherwise would, in the Court’s view, “encourage an employer to require an employee who has missed a ten-minute rest break to also miss his or her lunch period.”