Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 43 “carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests.”214 Responding to ABM’s argument that this holding is “radical,” Augustus stated that its holding did not preclude employers from “reasonably reschedul[ing]” rest periods when needed.215 Augustus also suggested that employers could seek an exemption from the DLSE from duty-free rest period requirements as provided in the Wage Orders, as ABM itself had done previously.216 3. Meal and Rest Period Premium Pay For each workday the employer fails to provide an employee with a required thirty-minute meal period or fails to authorize and permit a required ten-minute rest period or a required recovery period, the employee is entitled to recover one hour of pay at the employee’s “regular rate of compensation.”217 This language has been construed to be synonymous with an employee’s “regular rate of pay,” which means that “the calculation of premium pay for a noncompliant meal, rest, or recovery period, like the calculation of overtime pay, must account for not only hourly wages but also other nondiscretionary payments for work performed by the employee.”218 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 improper meal periods and one penalty for denied rest periods may be imposed per workday.219 In 2009, a federal district court in Marlo v. United Parcel Service220 analyzed the issue and agreed that an employee could recover both a meal period penalty and a rest period penalty in the same workday.221 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.222 In 2011, a California Court of Appeal panel agreed with Marlo in deciding United Parcel Service, Inc. v. Superior Court.223 The Court of Appeal noted that the legislative history demonstrated that Section 226.7 was specifically drafted to conform to the IWC Wage Orders.224 Because the Wage Orders “provide[] a separate remedy for 214 Id. at 270. 215 Id. at 271. 216 Id. 217 Lab. Code § 226.7; IWC Wage Orders, §§ 11(D) and 12(B). 218 Ferra v. Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021). In a decision that will have long-lasting ramifications for employers for meal and rest periods, the California Supreme Court in Ferra held that the terms “regular rate of pay” and “regular rate of compensation” are equivalent. And this decision applies retroactively. Id. at 863. 219 DLSE Manual § 45.2.8 and 45.3.7. 220 2009 WL 1258491 (C.D. Cal 2009). 221 Id. at *7. 222 Id. 223 United Parcel Serv. Wage & Hour Cases,196 Cal. App. 4th 57, 70 (2011). 224 Id. at 67-68.
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