Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 41 VI. Meal and Rest Period Claims A. Nature of Claims Since January 1, 2001, the Labor Code has imposed on employers a duty to provide employees one additional hour of pay for each daily violation of the meal and rest period requirements of the Wage Orders. The enactment of this rule triggered a massive wave of class actions against thousands of employers in California. In one notable case, a jury in Alameda County awarded a class $172 million in a meal period lawsuit against WalMart.200 1. Employers Must “Provide” Meal Periods Labor Code section 512 requires employers to “provide”201 an employee with a thirty-minute duty-free meal period before the employee works more than five hours.202 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.203 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.204 During a break that qualifies as a meal period, the employee must be relieved of all work duties.205 However, “the employer is not obligated to police meal breaks and ensure no work thereafter is performed.”206 200 Savaglio v. Wal-Mart Stores, No. S152827, 2007 Cal. LEXIS 7293 (Cal. Jul. 11, 2007) (Dec. 22, 2005 verdict) (the verdict included an award of $115 million in punitive damages). 201 The nature of the employer’s obligation to “provide” meal periods is described fully in Section VI.C., below. 202 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.”). 203 Id. 204 Lab. Code § 512(a). 205 IWC Wage Orders, §11(A). 206 Brinker v. Super. Ct., 53 Cal. 4th 1004, 1040-1041 (2012) (“[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.”)
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