©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 231 The exemption applies only to workers covered by a collective bargaining agreement and subject to Wage Order 1. If such a worker’s rest period is interrupted to respond to an emergency, then the employer must pay the worker one hour of pay. 7.9.13 Exemption for certain security officers In 2020, perhaps inspired by the special exemption for certain petroleum workers, the Legislature created a restbreak exemption for unionized registered private patrol operators. Yielding to the common sense that it furthers the public interest to have security officers who can respond to emergency situations without delay, the new law permits employers to require certain security officers to remain on the premises and on call during paid rest periods, and to carry and monitor a communication device. Affected security officers can, consistent with the employer obligation to provide rest breaks, be required to remain on the premises during rest periods, to remain on call, and to carry and monitor a communication device, so long as the security officer can restart a rest period anew as soon as practicable if the rest period is interrupted.300 7.9.14 Liability for unprovided rest breaks Failure to provide a required rest break incurs liability for an extra hour of pay per day at the employee’s regular rate (see § 7.10) and also can trigger section 558 of the Labor Code, which creates a civil penalty of $50 per employee per pay period for an initial violation, and $100 per employee per pay period for further violations.301 No double recovery. The extra hour of pay is in lieu of, not in addition to, the money needed to recover the wages lost by a denied rest break. The Court of Appeal so held in an unpublished 2020 case. Piece-rate farmworkers sued their employer for failing to pay for rest breaks. The plaintiffs sought minimum wage for the time they went unpaid, in addition to the “additional hour of pay” they were entitled to under Labor Code section 226.7. The Court of Appeal held that the trial court properly awarded damages under only one of the two theories asserted. Although both theories were legitimate, the rule against double recovery precluded awarding money under both theories. Plaintiffs were entitled to pay only once for each injury suffered. Although the trial court should have allowed plaintiffs to choose their route for recovery, they were not prejudiced in being forced to accept damages under the statute (the extra hour of pay), which maximized their recovery.302 7.10 The “One Additional Hour of Pay” A California employer that “fails to provide an employee a meal or rest or recovery period in accordance with a state law” must “pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest or recovery period is not provided.”303 The Court of Appeal has held that an employer that fails to provide both a meal period and a rest period must pay up to two premium hourly payments per work day – one for each type of break violation.304 The foregoing does not apply to employees who are exempt from meal, rest, or recovery period requirements “pursuant to other state laws.”305 7.10.1 Pay is characterized as a “wage” for purposes of the statute of limitations The extra hour of pay—a fixed amount due regardless of how long work intrudes into the meal or rest break— resembles a penalty in that the payment does not correspond to the amount of break time denied. As discussed below, “penalty” is the legal characterization that employer-defendants have preferred. And in fact 22 of the 24 Court of Appeal justices who considered the issue agreed with the employers’ view that the extra hour of pay is indeed a penalty, as did the DLSE in a Precedent Decision.306 In 2007, however, the California Supreme Court, in Murphy v. Kenneth Cole Productions, erased all of that proemployer authority by ruling, unanimously, that the extra hour of pay is what the plaintiffs always said it is: a
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