Reference points: Reporter pp. 69–70 and p. 69 fn. 10; one meal premium and one rest premium per qualifying workday; Final June 2, 2011 opinion on rehearing
57
[No. B227190. Second Dist., Div. Eight. June 2, 2011.]
UNITED PARCEL SERVICE WAGE AND HOUR CASES.
UNITED PARCEL SERVICE, INC., Petitioner, v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
WILLIAM M. ALLEN et al., Real Parties in Interest.
58
59
Counsel
Paul, Hastings, Janofsky & Walker, M. Kirby C. Wilcox, George W. Abele and
Elena R. Baca for Petitioner.
No appearance for Respondent.
Furutani & Peters, John A. Furutani; Duckworth, Peters & Lebowitz and Mark C.
Peters for Real Parties in Interest.
60
Opinion
BIGELOW, P. J.
INTRODUCTION
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.”1 The question before us is whether this statute authorizes
one premium payment per workday regardless of the number or type of break
periods that were not provided, or two premium payments per workday—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
workday.
FACTUAL AND PROCEDURAL BACKGROUND
United Parcel Service, Inc. (UPS), is the employer defendant in 32
coordinated actions by employees who are seeking compensation for, among
other things, UPS’s alleged failure to provide meal and rest periods pursuant
to section 226.7. That statute provides: “(a) No employer shall require any
employee to work during any meal or rest period mandated by an applicable
order of the Industrial Welfare Commission. [<][](b) If an employer fails to
provide an employee a meal period or rest period in accordance with an
applicable order of the Industrial Welfare Commission, the employer shall
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 period is not provided.”
UPS moved the trial court to sever and make a pretrial determination
concerning the amount of damages available under Labor Code section 226.7.
(See Code Civ. Proc., § 1048, subd. (b).) UPS argued that only one premium
payment is allowable per workday, regardless of the number or type of break
periods that were not provided. The employee plaintiffs disagreed, contending
Labor section Code 226.7, as well as the Industrial Welfare Commission’s
(IWC) wage order No. 9-2001 (which applies to employees in the transporta-
tion industry), allow up to two premium payments per workday—one for
failure to provide meal periods, and another for failure to provide rest
periods.
After a full hearing on the motion, the trial court disagreed with UPS and
concluded section 226.7 allowed up to two premium payments per workday.
1 All further references are to the Labor Code, unless otherwise indicated.
61
Among other things, the court found persuasive a recent federal district court
case decided in Los Angeles where the court held the IWC’s wage orders
provided “a separate remedy for violations of meal period requirements and
violations of rest period requirements” and that allowing recovery of up to
two premium payments per workday—one for each type of violation—was
not inconsistent with the language of section 226.7. (Marlo v. United Parcel
Service, Inc. (C.D.Cal., May 5, 2009, CV 03-04336 DDP (RZx))
2009 U.S.Dist. Lexis 41948, p. *21 (Marlo).)
UPS filed a petition for writ of mandate challenging the trial court’s ruling,
arguing section 226.7 precludes more than a single premium payment per
workday, despite the fact an employer may have failed to provide both a meal
and rest period in a particular day. We issued an order to show cause and
heard oral argument in order to determine this significant legal issue and
provide some guidance in the numerous coordinated cases before the trial
court. (See Babb v. Superior Court (1971) 3 Cal.-3d 841, 851 [92 Cal.Rptr.
179, 479 P.2d 379]; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129
[142 Cal.Rptr. 325].)
DISCUSSION
1. Principles of Statutory Interpretation and Standard of Review.
Our most important task in construing a statute is to ascertain the
intent of the lawmakers and effectuate the purpose of the statute. Our first
step is to examine the statutory language, giving the words a plain and
commonsense meaning. (Code Civ. Proc., § 1859; Day v. City of Fontana
(2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196].) The
meaning of a statute may not be determined from a single word or sentence
and the words must be construed in context. (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241
Cal.Rptr. 67, 743 P.2d 1323].) We do not give statutory language a literal
construction if it is contrary to the legislative intent apparent in the statute.
The intent prevails over the letter, and the letter will, if possible, be so read as
to conform to the spirit of the act. (People v. Belton (1979) 23 Cal.3d 516, 526
[153 Cal.Rptr. 195, 591 P.2d 485].)
If the statutory language is clear and unambiguous there is no need
for statutory construction or to look to the intent of the Legislature. (People v.
Ramirez (1995) 33 Cal.App.4th 559, 563 [39 Cal.Rptr.2d 374].) However, if a
statute is amenable to two alternative interpretations, the one that leads to the
more reasonable result will be followed. (Metropolitan Water Dist. v. Adams
(1948) 32 Cal.2d 620, 630-631 [197 P.2d 543].) The interpretation of a
62
statute is a question of law subject to our independent review. (People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [101 Cal.Rptr.2d
200, 11 P.3d 956].)
We must also be cognizant of the fact that in light of the remedial
nature of legislative enactments authorizing the regulation of wages, hours
and working conditions for the protection and benefit of employees, such
provisions are to be liberally construed with an eye to promoting such
protection. (Ramirez v. YosemiteWater Co. (1999) 20 Cal.4th 785, 794 [85
Cal.Rptr.2d 844, 978 P.2d 2].) Because section 226.7 is a statute governing
the conditions of employment, it must be construed broadly in favor of
protecting employees. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40
Cal.4th 1094, 1103 [56 Cal.Rptr.3d 880, 155 P.3d 284] (Murphy) [holding the
remedy in § 226.7 is not a penalty but rather a “premium wage” intended to
compensate employees for failure to provide meal and rest periods].)
2. The IWC Orders and Meal and Rest Period Requirements.
In order to provide context to our discussion of the premium pay
provision of section 226.7, subdivision (b), we set forth the relevant terms of
the IWC’s wage orders and the meal and rest period requirement. Subdivision
(a) of the statute prohibits employers from requiring their employees to work
during any meal or rest period as “mandated by an applicable order of the
[IWC],” a state agency empowered to formulate wage orders governing
employment in California. (Murphy, supra, 40 Cal.4th at p. 1102, fn. 4.)
While the Legislature defunded the IWC in 2004, its wage orders remain in
effect. (Ibid.)
The IWC originally issued wage orders mandating the provision of meal
and rest periods in 1916 and 1932, respectively. It did so because it was
concerned with the health and welfare of employees. However, the only
remedy available to employees was injunctive relief aimed at preventing
future abuse. (Murphy, supra, 40 Cal.4th at p. 1105.) In 2000, due to lack of
employer compliance with the break periods, the IWC added a pay remedy to
its wage orders. (Id. at pp. 1105-1106; see also § 516, authorizing the IWC to
adopt orders concerning break periods.)2
The IWC’s wage orders treat meal periods and rest periods in separate
sections, each providing the additional hour of pay per workday for the
designated type of violation. Together, the sections provide, among other
things, that employees are entitled to an unpaid 30-minute meal period after
2 The IWC issued 17 such orders, each of which apply to various types of employment. (See
Cal. Code Regs., tit. 8, §§ 11010-11170.)
63
working for five hours and a 10-minute rest period per four hours of work.
(See Cal. Code Regs., tit. 8, § 11090, subds. 11(A) & 12(B); Murphy, supra,
40 Cal.4th at p. 1104.) With regard to the remedy for meal periods, the wage
orders provide that “[i]f an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the em-
ployer shall pay the employee one (1) hour of pay at the employee’s regular
rate of compensation for each workday that the meal period is not provided.”
(Cal. Code Regs., tit. 8, § 11090, subd. 11(D).) Concerning rest periods, the
wage orders provide that “[i]f an employer fails to provide an employee a rest
period in accordance with the applicable provisions of this order, the em-
ployer shall pay the employee one (1) hour of pay at the employee’s regular
rate of compensation for each workday that the rest period is not provided.”
(Id., subd. 12(B).)
As will be further discussed below, the wording used in the IWC wage
orders is virtually identical to the wording used in subdivision (b) of section
226.7, except that instead of having separate sections for the meal and rest
periods, the Legislature chose to describe both break periods together so that
the additional hour of pay is for “each work day that the meal or rest period
is not provided.” (Italics added.)
3. The Mario Decision.
While a California court has not decided in a published opinion whether
section 226.7 permits two premium payments per workday rather than just
one, the federal district court in Mario squarely faced and decided this issue.
Because the court’s decision is instructive, we discuss it in- detail. (See
People v. Zapien (1993) 4 Cal.4th 929, 989 [17 Cal.Rptr.2d 122, 846 P.2d 704]
[decisions of lower federal court cases are not binding]; Olinick v. BMG
Entertainment (2006) 138 Cal.App.4th 1286, 1301, fn. 11 [42 Cal.Rptr.3d 268]
[unpublished federal district court cases are citable as persuasive authority].)
In Mario, employees sued UPS for, among other things, payment of meal
and rest breaks under section 226.7. In the context of deciding proper jury
instructions, the parties disagreed, as they do in this case, on how many
additional hours the employee could receive in the event he missed one or
more meal periods and one or more rest periods on any particular workday.
Focusing on the use of the disjunctive “meal or rest period” in subdivi-
sion (b), the employee argued “or” signals the violation of a rest break
requirement constitutes two separate violations thereby suggesting each type
of violation, whether meal or rest period, can lead to one hour of extra
compensation. (Mario, supra, 2009 U.S.Dist. Lexis 41948 at p. *13.) UPS
focused on the words “work day” and argued, precisely as it does here, that
even where distinct violations have occurred, the statute compensates per
64
“work day.” UPS argued the statute permits a single additional hour of pay
for that day, even if multiple violations of the rest break requirements have
occurred. (Id. at p. *14.)
The district court concluded both parties presented a reasonable way to
parse section 226.7, subdivision (b) and therefore looked to the structure of
the IWC wage order for guidance. The employee argued that the statute
required the premium payment if the meal or rest period was not provided
“ ‘in accordance with an applicable order of the [IWC],’ ” which the em-
ployee asserted was an intent to incorporate the language of the wage order.
(Mario, supra, 2009 U.S.Dist. Lexis 41948 at p. *14.) The court concluded
the structure of the wage order—setting out the requirements for meal and
rest breaks in two separate sections—supported the employee’s position that
up to two premium payments were permitted. But the court ultimately found
the structure of the wage order unhelpful in deciphering the Legislature’s
intent. Significantly, the court pointed out that the “in accordance with”
language is located only in the first clause of subdivision (b)—the clause
describing when an employer violates section 226.7 and not in the second
clause of subdivision (b), which describes what the employer must pay when
a meal or rest period is not provided. (2009 U.S.Dist. Lexis 41948 at p. *15.)
The district court next looked to the legislative history. The court recog-
nized that both section 226.7 and the final wage orders became effective at
the same time (Jan. 1, 2001) and that the Legislature was cognizant of the
IWC’s wage orders when it passed section 226.7, thereby tending to support
the employee’s reading of the statute. Nonetheless, the court found the
legislative history was inconclusive. (Mario, supra, 2009 U.S.Dist. Lexis
41948 at pp. *15—*16.)
The federal court finally decided the best resolution was to look to the
wage order itself. The court determined the wage order provides a separate
remedy for violations of meal period requirements and for violations of rest
period requirements, concluding, “Allowing an employee to recover one hour
of pay for each type of violation listed in the statute per work day is not
contrary to the ‘one additional hour’ ‘per work day’ language in
§ 226.7(b). ...[][] [The employee] may recover up to two additional hours of
pay on a single work day for meal period and rest break violations; one if any
meal period violations occur in a work day and one if any rest break
violations occur in a work day.” (Mario, supra, 2009 U.S.Dist. Lexis 41948 at
pp. *21-*22, original italics; see also Schuyler v. Morton’s of Chicago, Inc.
(C.D.Cal., Jan. 25, 2011, CV 10-06762 ODW (JCGx)) 2011 U.S.Dist. Lexis
10130, pp. *12—*13 and Lara v. Trimac Transportation Services (Western)
(C.D.Cal., Aug. 6, 2010, CV 10-4280-GHK (JCx)) 2010 U.S.Dist. Lexis
82420, pp. *10-* 11 [both following Mario’s conclusion that § 226.7 allows
65
an employee to recover up to two additional hours of pay on a single work
day]; Coleman v. Estes Express Lines, Inc. (C.D.Cal. 2010) 730 F.Supp.2d
1141, 1148-1149 [concluding class member employees were entitled to “one
hour of pay for each work day that the meal period was not provided and also
one hour of pay for each work day that the rest period was not provided”].)
4. Section 226.7 Permits Up to TwoPremium Payments Per Workday.
We agree with the district court in Mario that the interpretations advanced
by the parties are both reasonable, depending upon the words that are the
focus of the argument. On the one hand, focusing on the disjunctive in section
226.7, subdivision (b), which states “meal or rest period” (italics added), it is
not unreasonable to construe it as allowing one additional hour of pay for
failure to provide a meal period, and another hour of pay for failure to
provide a rest period. In other words, the disjunctive signals that there may be
two separate violations with a corresponding remedy of one additional hour
of pay for that violation in a given workday. On the other hand, if the latter
portion of subdivision (b) becomes the focal point, then it could be argued
that the words “compensation for each work day” set out one single payment
per workday, whether there is a failure to provide a meal period “or” failure
to provide a rest period. Because we believe section 226.7 is reasonably
susceptible to alternative interpretations, we look to extrinsic sources, such as
its legislative history, to determine the Legislature’s intent. (Murphy,supra, 40
Cal.4th at pp. 1105-1106.)3
The administrative and legislative history reveals that on June 30, 2000, at
a public hearing, the IWC amended its then existing wage orders by adopting
the premium pay remedy for violations of the meal and rest period require-
ments. (Murphy, supra, 40 Cal.4th at pp. 1109-1110.)4 The IWC issued wage
3 UPS asks us to take judicial
notice of section 226.7’s legislative history and the
administrative records of the IWC’s wage orders. The motion is granted. In considering the
applicable legislative history, the employee plaintiffs ask that we accept the declaration of an
attorney who worked for the Division of Labor Standards and Enforcement (DLSE), part of the
Department of Industrial Relations, as to his experience in the development of the IWC’s wage
orders. Because this declaration was rejected by the trial court and is unnecessary to our
analysis, we decline to consider it.
4
IWC Commissioner Barry Broad stated at the June 30, 2000 public hearing that he wanted
to “amend the language that’s in there to make it clearer . . . that what it would require is that
on any day that an employer does not provide a meal period or rest period in accordance with
our regulations, that it shall pay the employee one hour—one additional hour of pay at the
employee’s regular rate of compensation for each workday that the meal or rest period is not
provided.” (Transcript, IWC Public Hearing (June 30, 2000) pp. 25-28, 34-35, available at
<http://www.dir.ca.gov/iwc/PUBHRG6302000.pdf> [as of June 2, 2011].)
A subsequent notice of the actions taken at the June 30, 2000 hearing confirmed that wage
orders Nos. 1-2001 to 13-2001 and 15-2001 were amended as follows: “If an employer fails to
provide an employee a meal period or rest period in accordance with the applicable provisions
66
order No. 9-2000, along with many other similar wage orders for other
industries, indicating it would be effective October 1, 2000.5 Those wage
orders had a section dealing with the premium pay remedy for meal periods
and a separate section for rest periods, .exactly as the final and current version
of the wage orders which became effective January 1, 2001. (See IWC wage
order No. 9-2001, Cal. Code Regs., tit. 8, § 11090, subds. 11(D) & 12(B).)6
At the same time the IWC was adding the premium pay remedy to its wage
orders, Assemblymember Darrell Steinberg introduced Assembly Bill
No. 2509 (1999-2000 Reg. Sess.) (Assembly Bill 2509) as a means of
enforcing the existing wage order prohibitions against requiring an employee
to work during a meal or rest period. (Assem. Com. on Labor and Employ-
ment, Analysis of Assem. Bill 2509, Feb. 24, 2000, pp. 2, 4, 6-7; Murphy,
supra, 40 Cal.4th at p. 1106.) As originally introduced, Assembly Bill 2509
proposed an explicit penalty provision and a separate payment to employees.
(Ibid.)7 In August 2000, the Senate deleted the penalty provision and changed
the amount to be paid to employees from twice their rate of hourly compen-
sation to “one additional hour of pay at the employee’s regular rate of
compensation.” (Sen. Amend, to Assem, Bill 2509, Aug. 25, 2000, p. 23; see
Murphy, supra, 40 Cal.4th at p. 1107.)
In discussing the amended version of Assembly Bill 2509, which ulti-
mately was signed into law, “the Senate Rules Committee explained that the
changes were intended to track the existing provisions of the IWC wage
orders regarding meal and rest periods.” (Murphy, supra, 40 Cal.4th at
of these orders, it shall 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 period is not provided.” (IWC,
Notice of Actions Taken Public Hearing (June 30, 2000) available at <http://www.dir.ca.gov/
iwc/Amendedagenda6302000.html> [as of June 2, 2011]; see also IWC, Notice of Public
Hearing (June 30, 2000) Sacramento, available at <http://www.dir.ca.gov/iwc/6302000
hearingnotice.html> [as of June 2, 2011].)
5 IWC wage order No. 9-2000 Regulating Wages, Hours, and Working Conditions in the
Transportation Industry (Oct. 1, 2000), available, at <http://www.dir.ca.gov/iwc/
Wageorders2000/ IWCArticle9.pdf> sections 11(D), 12 (as of June 2, 2011).
6 IWC wage order No. 9-2001 Regulating Wages, Hours and Working Conditions in the
Transportation Industry, available at <http://www.dir.ca.gov/IWC/IWCArticle9.pdf> (as of June
2, 2011).
7 The original version of Assembly Bill 2509 provided, “An employer that violates this
section shall be subject to both of the following: [f] (1) A civil penalty of fifty dollars ($50)
per employee per violation, [fj (2) Payment to the aggrieved employee of an amount equal to
twice his or her average hourly rate of compensation for the full length of the meal or rest
periods during which the employee was required to perform any work. An employee paid on a
piecework basis shall be entitled to an amount equal to twice the amount of piecework units
earned during those periods, but in no event shall the amount be less that the applicable state
minimum wage for the full length of those time periods during which any work was
performed.” (Assem. Bill 2509, § 12, as introduced Feb. 24, 2000.)
67
pp. 1107-1108; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill 2509, as amended Aug. 25, 2000, p. 4.) Similarly, the
Assembly concurrence in the Senate amendments described the amendment
as “[d]elet[ing] the provisions related to penalties for an employer who fails
to provide a meal or rest period, and instead codify[ing] the lower penalty
amounts adopted by the [IWC].” (Assem. Floor Analysis, Conc. in Sen.
Amends., Analysis of Assem. Bill 2509, as amended Aug. 25, 2000, p. 2.)
Consistently, in a postpassage letter sent to the Governor, the author of the
bill stated the bill codified the “actions of the IWC” establishing a pay
remedy and “has been amended to conform to the IWC levels.” (Assem-
blymember Steinberg, letter to Governor Davis regarding Assem. Bill 2509,
Sept. 8, 2000, p. 2; see In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590
[128 Cal.Rptr. 427, 546 P.2d 1371] [a legislator’s statement may be consid-
ered when it reiterates legislative discussion and events leading to adoption to
proposed amendments, rather than merely expressing a personal opinion].)
The amended version of Assembly Bill 2509 was passed by the Legislature
on August 30, 2000, and chaptered on September 29, 2000, to be effective
January 1, 2001. (Gov. Code, § 9600, subd. (a).)
Based upon the above history, there can be no doubt that “the Legislature
was fully aware of the IWC’s wage orders in enacting section 226.7.”
(Murphy, supra, 40 Cal.4th at p. 1110.) Indeed, it would be appropriate to
conclude that the Legislature completely rewrote section 226.7’s original
wording in order to match the premium payment provisions adopted by the
IWC. Nonetheless, the parties disagree as to the precise premium payment
provisions that were adopted by the IWC at the time the Legislature amended
and passed Assembly Bill 2509.
UPS argues IWC wage order No. 9-2000—which sets out the premium pay
remedy for meal and rest breaks in two separate sections—could not possibly
reflect the IWC premium pay provisions the Legislature had in mind when
amending and passing Assembly Bill 2509 because it was not effective until
October 1, 2000, after the bill was passed. Rather, UPS contends the effective
provision at the time is reflected in Commissioner Broad’s statement made
and adopted at the June 30, 2000 public hearing, a provision which simply
tracks the language of section 226.7 that was ultimately enacted.8 The
employees argue that since 1990, the IWC’s wage orders have all continu-
ously had separate sections dealing with the requirements for meal and rest
periods.9 When the IWC adopted the pay remedy on June 30, 2000, it
8 See footnote 4, ante, page 65.
9 The IWC adopted wage order No.
9-90 in 1990, to be effective July 1, 1990. It had a
section dealing with the requirements for providing meal periods, and a separate section
dealing with the requirements for rest periods. In 1998, wage order No. 9-98 went into effect.
68
expressly intended to amend these existing wage orders, without any indica-
tion that the separate sections would be merged or consolidated into a single
section. Therefore, the employees assert that the IWC’s adoption of the pay
remedy on June 30, 2000, was in reference to amending each section in the
existing wage orders to include a one hour premium payment for each type of
violation, as was ultimately reflected in IWC wage order No. 9-2000.
As already noted, and as the district court in Mario appropriately con-
cluded, the wage orders are structured in such a way that they provide a
separate remedy for violations of meal period or violations of rest period
requirements, indicating that up to two premium payments are allowed per
work day—one for each type of violation. But it is not perfectly clear
whether the Legislature specifically had IWC wage order No. 9-2000 in mind
when it amended and passed Assembly Bill 2509 on August 30, 2000. While
it is reasonable to believe that the IWC issued wage order No. 9-2000 at
some point between the time of the IWC’s public hearing in June 2000 and
the end of August 2000 (even though it would not become “effective” until
Oct. 1, 2000), and that the Legislature was cognizant of it when it amended
and passed Assembly Bill 2509, there does not appear to be a legislative or
administrative record clearly indicating that this is the case.
What does seem clear is that from October 1, 2000, to the present day, the
IWC’s wage orders have consistently provided a separate remedy for viola-
tions of meal period requirements and violations of rest period requirements,
indicating that up to two premium payments are allowed per work day. If the
Legislature believed the formulation in the wage orders did not accurately
reflect the premium payment remedy intended by Assembly Bill 2509 and
that section 226.7 is restricted to only one premium payment per work day, it
could have amended the statute to clarify this intent. The Legislature has
never done so, suggesting the wage orders reflect the remedy intended by
section 226.7. (See Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1, 22 [78 Cal.Rptr.2d 1, 960 P.2d 1031] (cone. opn. of
Mosk, J.) [“ ‘ “[Lawmakers are presumed to be aware of long-standing
administrative practice and, thus, the . . . failure to substantially modify a
provision, is a strong indication [that] the administrative practice was consis-
’
tent with underlying legislative intent.” ”].)10
As with wage order No. 9-90, it had separate sections addressing meal periods and rest breaks.
(See IWC wage order No. 9-98 Regulating Wages, Hours, and Working Conditions in the
Transportation Industry, available at <http://www.dir.ca.gov/iwc/Wageordersl998/
IWCArticle9.pdf> [as of June 2, 2011].) Interim wage order No. 2000 went into effect on
March 1, 2000, and by its own terms reinstated wage order No. 9-90. (See IWC, Official
Notice—Summary of Interim Wage Order-2000, available at <http://www.dir.ca.gov/iwc/
SummaryInterimWageorder2000.pdf> [as of June 2, 2011].)
10 It is the DSLE that is empowered to enforce California’s labor laws, including IWC wage
orders. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561-562 [59
69
Therefore, while section 226.7 is reasonably susceptible of alternative
interpretations (one allowing a single premium payment per work day and
another allowing up to two), we believe it is more reasonable to construe the
statute as permitting up to two premium payments per workday—one for
failure to provide one or more meal periods, and another for failure to
provide one or more rest periods. We realize the wording in section 226.7,
subdivision (b), is not identical to the wage orders. As noted, the statute
provides for one additional hour of pay for each work day that the “meal or
rest period” is not provided, while the wage orders have one section allowing
for an additional hour of pay when a “meal period” is not provided and
another section allowing for an additional hour of pay when a “rest period” is
not provided. But we do not regard the insertion of the disjunctive “or” or the
failure to provide for the premium payment in separate sections as indicative
of the Legislature’s intent to limit the remedy to a single payment per work
day regardless of the number or type of break periods that are not provided.
Rather, we construe the Legislature’s use of the disjunctive as permitting an
additional hour of pay for each work day that either type of break period is
violated. We agree with the district court in Mario that allowing an employee
to recover one additional hour of pay for each type of violation per work day
is not contrary to the “one additional hour” and “per work day” wording in
subdivision (b). (Mario, supra, 2009 U.S.Dist. Lexis 41948 at p. *21.)
We further agree with Mario that construing section 226.7, subdivision (b),
as permitting one premium payment for each type of break violation is in
accordance with and furthers the public policy behind the meal and rest break
mandates. (See In re Prentiss C. (1993) 14 Cal.App.4th 1484, 1487 [18
Cal.Rptr.2d 541] [a statute should be construed to promote rather than defeat
the policy underlying the legislation].) The intent behind the IWC wage
orders and section 226.7 was to provide an incentive to employers to comply
with labor standards and compensate employees when those standards are
violated. (Murphy, supra, 40 Cal.4th at pp. 1106, 1110, 1113-1114.) As the
Mario court concluded, “[B]y providing no additional premium wage when
the second type of violation occurs, the alternative approach would encourage
Cal.Rptr.2d 186, 927 P.2d 296].) We note that the DLSE’s enforcement manual corresponds to
the IWC’s orders by treating meal and rest periods separately. (DLSE, Enforcement Policies
and Interpretations Manual (Mar. 2006) §§ 42.2-45.29, 45.3-45.3.7 (Manual).) For example,
section 45.2.8 states, in relevant part, “No matter how many meal periods (rest period penalties
are separate) are missed, only one meal period premium is imposed each day.” Section 45.3.7
provides, “Premium [flor [flailure [t]o [pjrovide [flest [p]eriods is the same as that imposed for
failure to provide meal periods. Note that only one hour for failure to provide a rest period
may be imposed in each day regardless of the number of rest periods missed.” (See Manual,
available at <http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcManual.pdf> [as of June 2,
2011].)
70
an employer to require an employee who has missed a ten-minute rest break
to also miss his or her lunch period.” (Mario, supra, 2009 U.S.Dist. Lexis
41948 at pp. *21-*22.)
In short, we conclude, based upon the wording of section 226.7,
subdivision (b), the IWC’s wage orders, the public policy behind the statute
and wage orders, and also the principle that we are to construe section 226.7
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.
DISPOSITION
The petition for writ of mandate is denied. Real parties are to recover their
costs in this writ proceeding.
Flier, J., and Grimes, J., concurred.