304 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 218 Sarmiento, 2019 WL 3059932, at *7 (quoting Huffman, 2019 WL 2563133, at *5). 219 Lab. Code §§ 5, 13. 220 See generally Wage Order 9 (Transportation Industry) § 3(L) (overtime provisions do not apply to employees whose hours of service are regulated by the U.S. Department of Transportation or by Title 13 of the California Code of Regulations, regulating hours of drivers). 221 Fitzgerald v. Skywest Airlines, 155 Cal. App. 4th 411 (2007); see also Seitz v. Int'l Bhd. of Teamsters, 2021 WL 5577015, at *2 (N.D. Cal. Nov. 30, 2021) (holding that a plaintiff’s claims under sections 222 and 223 of the California Labor Code were preempted by the RLA because “to determine whether [Defendant] withheld wages owed to [Plaintiff]….would require an interpretation of the collective bargaining agreement, and therefore ‘must be resolved through grievance and arbitration’”) (quoting Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253 (1994))., 222 Ward v. United Airlines, 9 Cal. 5th 732, 746 (2020)); accord Gunther v. Alaska Airlines, Inc., 72 Cal. App. 5th 334, 340 (holding that flight attendants covered by a collective bargaining agreement negotiated persuant to the RLA were nonetheless entitled to Section 226 compliant wage statements); see also Ward v. United Airlines, 986 F.3d 1234, 1244 (“we conclude that plaintiffs' claims under California Labor Code § 226 are not preempted by the RLA”). 223 Lab. Code §§ 860-862. 224 Lab. Code § 226.7(b). 225 Lab. Code § 512(a). 226 DLSE Enforcement Policies and Interpretations Manual § 45.2.2 (2002) (“Labor Code § 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Labor Code § 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal period requirement. Thus, no premium pay may be imposed on a employer who fails to provide a meal period to an exempt employee.”). 227 IWC Wage Orders § 7(A)(3) (requiring that the employer keep accurate “[t]ime records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.”). 228 IWC Wage Orders § 11(C). 229 DLSE Opinion Letter 2002.09.04, at 3 (opining that on-duty meal periods are not allowed for shift manager at fast food restaurant; reasoning that “[t]here is nothing that would appear so inherently complex about the running of a fast food outlet that would make the shift manager’s presence utterly indispensable so as to preclude this manager from getting his or her well deserved, and legally required, offduty meal break”). 230 See, e.g., Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 941 (2016) (reversing order decertifying class of security guards claiming a denial of meal periods; plaintiffs could pursue a theory that liability had resulted “from Wackenhut’s policy of requiring all employees to sign on-duty meal agreements and allowing client preference to dictate whether an employee had an off-duty or on-duty meal period, rather than itself determining, as the employer, whether the nature of the work at each site prevented its employees from having an off-duty meal period”); Faulkinbury v. Boyd & Assocs., Inc., 216 Cal. App. 4th 220, 234 (2013) (directing trial court to grant certification on meal-period claim by security guards: “by requiring blanket off-duty meal break waivers in advance from all security guard employees, regardless of the working conditions at a particular station, [the employer] treated the off-duty meal break issue on a classwide basis”). 231 L’Chaim House, Inc. v. DLSE, 38 Cal. App. 5th 141, 144 (2019) (affirming DLSE’s citation to employer for failing to provide meal periods; “an on-duty meal period is not the functional equivalent of no meal period at all. On-duty meal periods are an intermediate category requiring more of employees than off-duty meal periods but less of employees than their normal work.”). 232 IWC Wage Orders § 11(A); Lab. Code § 512. 233 Ehret v. WinCo Foods, LLC, 26 Cal. App. 5th 1 (2018). (affirming summary judgment to employer; rejecting plaintiffs’ argument that a meal period waiver cannot be enforced unless it uses “the word ‘waiver,’ or ‘waived,’ or ‘waiving’”). 234 IWC Wage Orders § 11(B); Lab. Code § 512 (neither Wage Order nor statute requires a writing). 235 Gerard v. Orange Coast Mem. Med. Ctr. (“Gerard I”), 234 Cal. App. 4th 285 (2015), rev. granted, No. S225205 (Cal. May 20, 2015) (agreeing to decide (1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512, subdivision (a)? (2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively?). 236 SB 327, amending Lab. Code § 516 (stating “the healthcare employee meal period waiver provisions ... were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable”). 237 No. 225205 (Aug. 17, 2016) (remanding case with directions to vacate its decision and to reconsider the cause in light of the enactment of Statutes 2015, chapter 505 (Sen. Bill No. 327 (2015-2016 Reg. Sess.)). 238 Gerard v. Orange Coast Mem’l Med. Ctr. (“Gerard II”), 9 Cal. App. 5th 1204, 1207 (2017) (affirming denial of class certification and summary judgment to employer; “[W]e hold Senate Bill 327 represents a clarification of the law before our decision in Gerard I, consistent with our reconsidered view above, rather than a change in the law.”). 239 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040-41 ( 2012) (holding that “absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work and that “Wage Order No. 5 does not impose additional timing requirements”; “[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
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