Employees Entitled to Two Premium Payments Per Day


Employees entitled to TWO premium payments per day if employers fail to provide meal and rest breaks

While the issue of meal breaks still looms in controversy over California employers, another California Appellate Court issued a decision which clarifies a related question.

Labor Code section 226.7 requires an employer who fails to provide an employee with a meal or rest period to pay that employee one additional hour of pay (or premium payment) “for each work day that the meal or rest period is not provided.”Attorneys and courts have struggled with the question of whether this statute authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day – one for failure to provide a meal period and another for failure to provide a rest period.

The appellate court in UPS v Superior Court held that the statute authorizes up to two premium payments per work day – one for a missed meal period, and another hour of pay for failing for providing rest breaks.

Of course, employers should all know that the Brinker decision, which has been pending before the California Supreme Court since July 22, 2008, will ultimately decide the issue of whether employers may comply with Labor Code section 226.7 by making the meal period available, as opposed to ensuring that employees actually take their full 30 minutes of totally relieved break time.We continue to track the status of the Brinker decision, along with the closely related Chipotle case, but as of today, these cases have not yet been set for oral argument.

In the meantime, we continue to URGE employers to comply with the Labor Code by ENSURING that their employees take their full 30 minute meal breaks, without interruption, and of course, continue to make available the paid ten minute rest breaks as well.

Posted on 03/23/11 by Allison