Court of Appeal Confirms That Portion of Wage Order Is Invalid, Clears the Way for Action on Second Meal Periods

In Lazarin v. Superior Court (Total Western, Inc.) (October 7, 2010) --- Cal.App.4th ---, the Court of Appeal invalidated IWC Wage Order No. 16-2001, section 10(E), which allows employees to waive their second meal period if they are covered by a collective bargaining agreement (CBA) that meets certain minimum standards. The Court held that the IWC exceeded its authority in promulgating section 10(E) because it conflicts with Labor Code section 512. The Court summarized the opinion as follows:

Three union-represented construction workers ... sued their former employer ... TWI, on behalf of themselves and a putative class of former and current nonexempt hourly employees of TWI providing on-site construction services at oil refineries, power plants or other industrial facilities, alleging in part TWI had failed to provide second meal periods in the manner required by Labor Code section 512, subdivision (a), and section 10(B) of Industrial Welfare Commission (IWC) wage order No. 16-2001 (Cal.Code Regs. tit. 8, § 11160) (wage order 16). In their fifth cause of action the workers seek damages for TWI's failure to pay premium wages required by section 226.7 to compensate its employees for the missed second meal periods. In their second cause of action the workers allege TWI's practice of failing to provide the required second meal periods constitutes an unfair and unlawful business practice in violation of Business and Professions Code section 17200 et seq.

Based on its understanding of the decision by Division Four of this court in Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429 (Bearden), respondent Los Angeles Superior Court granted TWI's motion for summary adjudication as to the fifth cause of action, ruling the exemption from the second-meal-period provision for employees covered by certain collective bargaining agreements contained in wage order 16, section 10(E), was invalid but, because that exemption remains part of the wage order, TWI could not be liable for damages under section 226.7. The court denied TWI's motion for summary adjudication as to the second cause of action, concluding the workers had asserted a viable claim for unfair business practices based on the alleged violations of section 512, subdivision (a).

The superior court erred in applying Bearden, ... which held the IWC had exceeded its statutory authority in adopting the exemption for union-represented employees contained in wage order 16, section 10(E), but gave its decision prospective effect only. The failure of an employer to provide second meal periods as required by section 512, subdivision (a), and wage order 16, section 10(B), is subject to an award of premium pay as specified in section 226.7. Accordingly, we grant the petition for writ of mandate filed by [plaintiffs] and direct the court to vacate its order of February 11, 2010 granting TWI's motion for summary adjudication as to the fifth cause of action and to enter a new and different order denying that motion.

Slip op. at 1.

The full text of the opinion is available here.