Litigating California Wage & Hour and Labor Code Class Actions

a jury in Alameda County awarded a class $172 million in a meal period lawsuit against
Wal-Mart. 105
Labor Code Section 512 requires employers to “provide” an employee with a thirty-minute
off-duty meal period on every day in which the employee works more than five hours. 106
The IWC Wage Order does not use the word “provide,” but states that an employer is not to
employ a person for a work period exceeding five hours without a meal period. An
employee who works no more than six hours in one day may waive the thirty-minute unpaid
meal period, with the mutual consent of the employer. 107 An employee who works more
than ten hours in one day must be provided a second thirty-minute meal period, although
that second meal period can be waived if the employee works no more than twelve hours in
a day and has not waived the first meal period. 108 During a break that qualifies as a meal
period, the employee must be relieved of all work duties. 109
The Wage Orders also require an employer to allow employees to take paid rest breaks.
This requirement is somewhat different than the meal period requirement in that nothing in
the Wage Orders or the Labor Code restricts employees from voluntarily waiving their rights
to rest periods. Waiver issues aside, Section 12(A) of the Wage Orders requires employers
to allow employees a paid, ten-minute rest period for every four hours worked, or major
portion thereof.
No rest break is required unless an employee works three and one-half hours in a
workday. 110 Employees are entitled to 10 minutes rest for shifts from three and one-half to
six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, and 30
minutes for shifts of more than 10 hours up to 14 hours. 111
Employers normally must
provide rest breaks near the middle of each four hour work period, but need not provide a
rest period before the first meal period. 112
to any requirement that the employer keeps records.
Rest breaks, unlike meal periods, are not subject
105
106
107
108
109
110
111
112
Savaglio v. Wal-Mart Stores, No. C-835687 (Dec. 22, 2005 verdict). The verdict included an award of $115 million in
punitive damages. The case is on appeal and was stayed pending a resolution of the Brinker decision, discussed Infra,
and a ruling has not yet issued.
See, e.g., Wage Order 7-2001 § 11(A).
Id.
Lab. Code § 512(a).
Wage Order 7-2001 § 11(A).
See, e.g., Wage Order 7-2001 § 12(A).
Brinker Restaurant Corp. v. Superior Court, 2012 WL 1216356, at *10 (Cal. April 12, 2012).
Id. at *11, 12.
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