• Labor Code Section 226.7 Allows Up to Two Premium Payments per Work Day
  • April 27, 2011 | Authors: Laura A. Izon; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In United Parcel Service, Inc. v. Superior Court of the State of California for the County of Los Angeles, (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., February 16, 2011), a court of appeal considered whether Labor Code section 226.7 allows a worker one or two premium payments per work day where an employer fails to provide meal and rest periods. The court of appeal concluded that section 226.7 allows for up to two premium payments for each work day.

    Facts
    A group of employees filed thirty-two lawsuits against their employer, United Parcel Service, Inc. (“UPS”). The employees were seeking compensation from UPS for, among other things, failure to provide rest and meal periods. The employees asserted they were allowed “up to two premium payments per work day -- one for failure to provide meal periods, and another for failure to provide rest periods.” UPS asserted there can be only one premium payment per work day even if more than one type of break was not provided. The trial court disagreed with UPS and found that Labor Code section 226.7 permits up to two payments per work day. UPS filed a petition for writ of mandate to challenge the trial court’s ruling.

    Decision
    The court of appeal denied UPS’s petition for writ of mandate. Labor Code section 226.7, subdivision (a), provides, “No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” Section 226.7, subdivision (b) provides, “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.”

    Wage orders issued by the Industrial Welfare Commission (“IWC”) “treat meal periods and rest periods in separate sections, each providing the additional hour of pay per work day for the designated type of violation.” The wage orders provide that employees are entitled to a rest period of ten minutes per four hours of work and an unpaid meal period of 30 minutes after working for five hours. Pursuant to the wage orders, “‘[i]f an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each work day that the meal period was not provided.’” Also, “the wage orders provide ‘[i]f an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.’” The court noted that the wording used by the IWC in its wage orders is virtually identical to the language used by the Legislature in section 226.7, subdivision (b), “except that instead of having separate sections for the meal and rest periods, the Legislature chose to describe both break periods together so that the additional hour of pay is for ‘each work day that the meal or rest period is not provided.’”

    The court noted that a federal district court recently held in a case involving UPS that, pursuant to section 226.7, an employee “may recover up to two additional hours of pay on a single work day for meal period and rest break violations: one if any meal period violations occur in a work day and one if any rest break violations occur in a work day.” The court of appeal concluded the legislative “history, in conjunction with the administrative history of the wage orders supports a construction of section 226.7 permitting up to two premium payments per work day.” The court found that when the Legislature enacted section 226.7, it was fully aware of the wage orders. The wage orders are structured so that a separate remedy is provided each type of violation.

    The court examined the “wording of section 226.7, subdivision (b), the legislative and administrative history of the statute and IWC wage orders,” and took into account “the public policy behind the statute and wage orders, and also the principle that [the court is] to construe section 226.7 broadly in favor of protecting employees” and concluded “that the employees in this case may recover up to two additional hours of pay on a single work day for meal period and rest period violations -- one for failure to provide a meal period and another for failure to provide a rest period.”