308 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com payments made under California Labor Code section 226.7[,] … if an employer fails to provide an employee a meal period or rest period in accordance with State requirements, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation for each day that the meal or rest period is not provided. Because the meal and rest period payments are essentially additional compensation for the employee performing additional services during the period when the meal and rest periods should have been provided, it appears those payments are wages for federal employment tax purposes.” IRS Memorandum No. 201522004 at 6. 301 Lab. Code § 218.5. 302 Lab. Code § 218.6. 303 Naranjo v. Spectrum Security Services, Inc., No. 258966 (Cal. May 23, 2022). 304 Lab. Code § 201. 305 Compare Ruelas v. Costco Wholesale Corp., 2015 WL 1359326, at *2 (N.D. Cal. Mar. 25, 2015) (granting employer’s motion for judgment on the pleadings “because Section 226.7(c) penalties do cover Section 512 meal-period violations, PAGA does not apply”) with Wert v. U.S. Bancorp, 2016 WL 1110302, at *4 (S.D. Cal. Mar. 22, 2016) (disagreeing with Ruelas and holding both statutory penalties under the Labor Code and civil penalties under PAGA could be recovered for the same violation). 306 Betancourt v. OS Restaurant Services, LLC, 49 Cal. App. 5th 240, 248, 252 (2020) (reversing attorney fees award to employee; “actions for nonprovision of meal or rest periods do not entitle employees to pursue the derivative penalties in sections 203 [waiting time] and 226 [wage statement violations]”; plaintiff did not sue “for nonpayment of wages, which is the necessary predicate for an award of fees under section 218.5”). 307 DLSE Enforcement Policies and Interpretations Manual § 49.1.2.4(9) (2002) (extra hour of pay for a meal period or rest break violation is in the nature of legally required premium pay and thus is not included in computing the regular rate of pay). 308 Ferra v. Loews Hollywood Hotel, LLC, 11 Cal. 5th 858, 863 (2021) (reversing summary judgment to employer; “We hold that the terms are synonymous: ‘regular rate of compensation’ under section 226.7(c), like ‘regular rate of pay’ under section 510(a), encompasses all nondiscretionary payments, not just hourly wages.”). 309 Id. at 880 (“[W]e reject Loews’s request that we apply our decision only prospectively.”). 310 Naranjo v. Spectrum Security Servs., Inc., 40 Cal. App. 5th 444 (2019), rev. granted, No. S258966 (Cal. Jan. 2, 2020). 311 Wage Orders § 14 (“(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”). 312 Lab. Code § 1198 (“The employment of any employee … under conditions of labor prohibited by the order is unlawful.”). 313 No. 04-431310 (S.F. Sup. Ct. 2005). 314 Currie-White v. Blockbuster Inc., 2009 WL 2413451, at *3 (N.D. Cal. Aug. 15, 2009) (dismissing PAGA claim based on suitable seating but with leave to amend; “[P]laintiff has failed to plead any facts to support her conclusory allegation that ‘the nature of cashier work reasonably permits the use of seats’ …The Court, however, will afford plaintiff an opportunity to file an amended complaint curing this deficiency.”). 315 Bright v. 99 Cents Only Stores, Inc., 189 Cal. App. 4th 1472, 1481 (2010) (reversing dismissal of PAGA claim based on suitable seating; “[W]e conclude section 2699, subdivision (f)’s civil penalties are available for a violation of section 1198, based on failure to comply with Wage Order No. 7, subdivision 14.”); Home Depot USA v. Superior Court, 191 Cal. App. 4th 210 (2010). 316 Green v. Bank of Am. NA, 512 Fed. App’x 665, 666 (9th Cir. 2013) (reversing dismissal of complaint for failure to allege that plaintiff had requested a seat; “The district court erred when it assumed a requirement, not in the text of the Wage Order, that employees must request seating before it is offered.”). 317 Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192, 1193-94 (9th Cir. 2013). 318 Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016). 319 Id. at 17-18. 320 Id. at 21-22. 321 Id. at 20-21. 322 Id. at 21-23. 323 Id. at 24 (“An employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.”). 324 Id. at 19. 325 LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388 (2022). LaFace also held that there is no right to a jury trial for PAGA claims: “On balance, we cannot conclude that such an action [under PAGA] has a pre-1850 common law analog that would call for the right to a jury trial under the California Constitution.” See § 5.15.3. 326 Id. at *12. 327 Id. at *12 (“Despite these expectations, employees sometimes did not engage in their expected job duties. However, their decision to remain at their checkstands rather than perform their other expected tasks does not constitute a lull in the operation of those other duties.”).
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