UPS v. Superior Court: Plaintiffs Can Recover Two Hours of Pay Per Day for Meal and Rest Violations

This is the second meal and rest period case of the day originating from the same Superior Court judge (LASC, Judge West). But while defendants will applaud Tien v. Tenet Healthcare (blogged here), in which the Court of Appeal affirmed a trial court order denying class certification, it is the plaintiffs who will cheer United Parcel Service, Inc. v. Superior Court (Allen) (2/17/11) --- Cal.App.4th ----, 2011 WL 523633, , which holds that Labor Code section 226.7 provides for two hours of pay per day when an employee misses both a meal and a rest period.

Labor Code section 226.7 requires an employer who fails to provide an employee with a meal or rest period to pay that employee one additional hour of pay (or premium payment) “for each work day that the meal or rest period is not provided.” The question before us is whether this statute authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day-one for failure to provide a meal period and another for failure to provide a rest period. We conclude section 226.7 permits up to two premium payments per work day.

Slip op. at 1.

This case arises out of 32 coordinated actions in which the plaintiffs allege meal and rest period violations, among others. UPS asked the trial court to determine whether the plaintiffs could recover one or two hours of pay under section 226.7, the court held that they could recover two, and UPS petitioned for a writ of mandate.

The Court of Appeal began by noting the remedial nature of the wage and hour codes. Slip op. at 2. It then reviewed the Wage Order and Labor Code requirements, noting that the Wage Orders "treat meal periods and rest periods in separate sections, each providing the additional hour of pay per work day for the designated type of violation." Slip op. at 3. The Court then reviewed Marlo v. UPS (C.D. Cal. May 5, 2009, CV 03-04336 DDP) 2009 U.S. Dist. Lexis 41948, p. 21, which held that an employee who misses a meal and rest period in the same day can recover two hours of pay. Slip op. at 3-4.

The Court followed Marlo's reasoning and held that Section 226.7 allows for recovery of two hours of pay per day. The Court found that 226.7 can be read as allowing for either one or two hours of pay per day, but the histories of 226.7 and the Wage Orders support a rule allowing for two hours of pay. Slip op. at 4-7.

In short, we conclude, based upon the wording of section 226.7, subdivision (b), the legislative and administrative history of the statute and IWC wage orders, the public policy behind the statute and wage orders, and also the principle that we are to construe section 266.7 broadly in favor of protecting employees, that the employees in this case may recover up to two additional hours of pay on a single work day for meal period and rest period violations-one for failure to provide a meal period and another for failure to provide a rest period.

Slip op. at 7.

The opinion is here. It will be interesting to see whether the Supreme Court grants review of UPS pending Brinker. My guess is that it will not, because all of the grant-and-holds to date involve the "make available or ensure" question.