Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 35 1. Employers Must “Provide” Meal Periods Labor Code section 512 requires employers to “provide”187 an employee with a thirty-minute duty-free meal period before the employee works more than five hours.188 The IWC Wage Orders do not use the word “provide,” but state 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.189 An employee who works more than ten hours in one day must be provided a second duty-free, thirty-minute meal period before the end of the tenth hour, 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.190 During a break that qualifies as a meal period, the employee must be relieved of all work duties.191 2. Employers Must “Authorize and Permit” Rest Periods Section 12 of the Wage Orders also requires an employer to authorize and permit employees to take a paid, tenminute rest period for every four hours worked, or major portion thereof.192 No rest period must be authorized unless an employee works at least three and one-half hours in a workday.193 Employees are entitled to a ten-minute rest period for shifts from three and one-half to six hours in length, another ten-minute rest period for shifts of more than six hours up to 10 hours, and another ten-minute rest period for shifts of more than 10 hours and up to 14 hours.194 “Insofar as practicable,” employers must provide rest periods near the middle of each four-hour work period, but need not provide a rest period before the first meal period.195 187 The nature of the employer’s obligation to “provide” meal periods is described fully in Section VI.C., below. 188 IWC Wage Orders, § 11(A). The California requirements provide meal and rest periods are not preempted by federal law. See Bernstein v. Virgin Am., Inc., 990 F.3d 1157, 1167 (9th Cir. 2021) (“Virgin contends that federal law preempts California's meal and rest break requirements in the aviation context because federal law occupies the field. We disagree.”). 189 Id. 190 Lab. Code § 512(a). 191 IWC Wage Orders, §11(A). 192 The fact that an employer’s rest period policy omitted the required language of “major fraction thereof” does not automatically result in a “common” unlawful practice, for purposes of class certification. Rather, the plaintiff must still show that employees were harmed or “suffered injury” based on an application of the policy. Davidson v. O'Reilly Auto Enterprises, LLC, 968 F.3d 955, 967 (9th Cir. 2020) (affirming denial of class certification; “Although Davidson argued that O'Reilly’s written rest-break policy was inconsistent with California law because it omitted the phrase ‘or major fraction thereof,’ she did not show that the policy was applied to employees in a way that violated California law. Because there was no evidence that a class of employees ‘suffered the same injury,’ Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (quoting Falcon, 457 U.S. at 157, 102 S.Ct. 2364), Davidson did not establish commonality”; “Put another way, the mere existence of a facially defective written policy—without any evidence that it was implemented in an unlawful manner—does not constitute ‘[s]ignificant proof’ … that a class of employees were subject to an unlawful practice.”). 193 IWC Wage Orders, § 12(A). 194 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1029 (2012). 195 Id. at 1031-32.
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