Employer Who Fails To Provide A Second Meal Period For Employees Who Work Ten Hours Per Day Must Pay Employee For An Extra Hour Of Pay

In Lazarin v. Superior Court, (— Cal.Rptr.3d —-, Cal.App. 2 Dist., October 7, 2010), a California Court of Appeal considered whether an employer who failed to provide a second meal period for employees working for periods greater than ten hours per day was required to pay those employees for an extra hour of pay. The court ruled that Labor Code Section 226.7 does compel the payment. The existence of an Industrial Welfare Commission (“IWC”) wage order that a court had previously invalidated to the contrary does not change the requirement.


Richard Lazarin and other construction workers (“Employees”) were employed by Total Western, Inc. (“TWI”) to provide construction services at various industrial facilities. The employees filed suit against TWI claiming that TWI required them to work shifts of more than 12 hours a day and failed to provide them with a second, uninterrupted 30-minute meal period, as required by Labor Code Section 512.

The trial court granted summary judgment to TWI, citing the existence of IWC Wage Order 16-2001, section 10(E), which provided that the meal period requirement is not applicable to employees covered by collective bargaining agreements. Although Section 10(E) had been invalidated by the decision in Bearden v. U.S. Borax, Inc., (2006) 138 Cal.App.4th 429, the trial court ruled it remained part of the wage order and that TWI could not be held liable under Section 226.7 by adhering to it. The Employees appealed.


In Bearden, the court explained, the trial court invalidated Section 10(E), but also ruled that Section 226.7 prohibits employers from requiring employees to work during a meal or rest period mandated by an applicable order of the IWC. Since no such order had been violated, there was no basis for relief under Section 226.7. In Bearden, the employer could not be liable for adhering to an IWC order it could not have known would be invalidated.

Here, however, TWI was on notice of what the law currently requires, the court said. Section 512 clearly requires a second meal break for shifts longer than 12 hours, and Section 226.7 clearly provides the remedy for violating that requirement: an additional hour of pay. TWI could therefore not claim the same exemption from that remedy that the court awarded to the employer in Bearden. Consequently, the trial court erred when it applied Bearden to this case, the court ruled.

The court granted the Employees’ petition, directed the trial court to vacate its order granting summary judgment for TWI, and enter a new order denying that motion and to conduct further proceedings.


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