Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 37 Although the statute is unclear with respect to how many such penalties are due when an employer fails to provide multiple required meal or rest periods in a single day, the DLSE has taken the position that a maximum of one penalty for missed meal periods and one penalty for denied rest periods may be imposed per workday.201 In 2009, a federal district court in Marlo v. United Parcel Service202 analyzed the issue and agreed that an employee could recover both a meal period penalty and a rest period penalty in the same workday.203 However, the court determined that an employee can recover penalty pay for only one meal and only one rest period violation per day, even if the employee were to miss two meal periods or two rest periods.204 In 2011, a California Court of Appeal panel agreed with Marlo in deciding United Parcel Service, Inc. v. Superior Court.205 The Court of Appeal noted that the legislative history demonstrated that Section 226.7 was specifically drafted to conform to the IWC Wage Orders.206 Because the Wage Orders “provide[] a separate remedy for violations of meal period requirements and violations of rest period requirements ... up to two premium payments are allowed per work day.”207 Many employers fail to maintain records that comprehensively establish that employees in fact took their meal and rest periods. This is especially the case when an employer has mistakenly classified a position as exempt, because employers are not required to keep time records for employees covered by the most common exemptions (administrative, executive, and professional). Section 7 of the Wage Orders requires employers to record meal periods of non-exempt employees, and the DLSE generally has opined that in the absence of records proving that meal periods were taken, the employees are presumed not to have taken them (although the presumption is rebuttable).208 In 2021, the California Supreme Court issued a landmark ruling affirming that time records showing noncompliant meal periods raises a rebuttable presumption of meal period violations. In Donohue v. AMN Services, LLC, the Supreme Court held that if “time records show missed, short, or delayed meal periods with no indication of proper compensation, then a rebuttable presumption [of a violation] arises.” 209 “Employers can rebut the presumption by presenting evidence that employees were compensated for noncompliant meal periods or that they had in fact been provided compliant 201 DLSE Manual § 45.2.8 and 45.3.7. 202 2009 WL 1258491 (C.D. Cal 2009). 203 Id. at *7. 204 Id. 205 196 Cal. App. 4th 57 (2011). 206 Id. at 67-68. 207 Id. at 68. 208 Note, however, that Section 7 of the Wage Orders also provides that “Meal periods during which operations cease ... need not be recorded.” No published case has interpreted this provision, but logically it would seem to apply, for example, where a manufacturer stops a production line at a scheduled time and all employees on that line go to lunch as a group. Having many employees simultaneously trying to clock out for lunch would be problematic, so it would make sense to permit the established break schedule to substitute as a record of the breaks taken under such circumstances. 209 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 77 (2021).
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