Litigating California Wage & Hour and Labor Code Class Actions
Litigating California Wage & Hour and Labor Code Class Actions
Litigating California Wage & Hour and Labor Code Class Actions
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Arguably, no additional $100-per-pay-period penalty would be recoverable under<br />
the <strong>Labor</strong> <strong>Code</strong> Private Attorney General Act of 2004 (“PAGA”). 126<br />
A prevailing plaintiff would not be entitled to attorney’s fees under <strong>Labor</strong> <strong>Code</strong><br />
Section 218.5. 127<br />
The employee would not be entitled to prejudgment interest under <strong>Labor</strong> <strong>Code</strong><br />
Section 218.6. 128<br />
In 2007, in a decision that surprised many in the wage <strong>and</strong> hour community, the <strong>California</strong><br />
Supreme Court held unanimously that Section 226.7 provides for “a wage or premium pay”<br />
rather than a penalty. 129 Although the decision definitively decided that the statute of<br />
limitations on a Section 226.7 claim is three years, the decision left open several other<br />
issues of meal period law:<br />
<br />
<br />
<br />
Whether meal <strong>and</strong> rest period “premium pay” can be recovered through an action<br />
under Business & Professions <strong>Code</strong> Section 17200, which would extend the<br />
statute of limitations to four years;<br />
Whether the meal must be provided within the first five hours of an employee’s shift<br />
<strong>and</strong> after any additional stint when an employee is required to work for more than<br />
five hours; <strong>and</strong><br />
Whether an employer who gives an employee an opportunity to take an off-duty<br />
meal period is nonetheless liable for “premium pay” when the employee voluntarily<br />
opts not to take the meal period.<br />
C. Meaning of “Provide” a Meal Period<br />
Next to the issue of the proper statute of limitations, the most hotly debated issue in meal<br />
period law has been whether the employer complies with its duty to “provide” a meal period<br />
by making the meal period available for employees to take, or whether the employer is<br />
liable whenever it fails to m<strong>and</strong>ate its employees to go off duty for an uninterrupted thirtyminute<br />
meal break.<br />
126<br />
127<br />
128<br />
129<br />
Lab. <strong>Code</strong> § 2698, et seq., discussed infra in Section X. But see Caliber Bodyworks v. Superior Court, 134 Cal. App.<br />
4th 365, 377 (2005) (suggesting that penalties recoverable by individuals independent of PAGA are not civil penalties,<br />
which would allow recovery of a separate civil penalty for violations of <strong>Labor</strong> <strong>Code</strong> Section 226.7 even if the one-hourof-pay<br />
requirement is a penalty).<br />
Lab. <strong>Code</strong> § 218.5 (attorney’s fees available for actions to recover wages).<br />
Cf. Lab. <strong>Code</strong> § 218.6 (statutory pre-judgment interest recoverable in action for wages).<br />
Murphy v. Kenneth Cole Prods., 40 Cal. 4th 1094 (2007).<br />
Seyfarth Shaw LLP | www.seyfarth.com <strong>Litigating</strong> <strong>California</strong> <strong>Wage</strong> & <strong>Hour</strong> <strong>Class</strong> <strong>Actions</strong> (12th Edition) 33