CACI No. 2762. Rest Break Violations - Pay Owed

Judicial Council of California Civil Jury Instructions (2023 edition)

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2762.Rest Break Violations - Pay Owed
For each workday on which [name of plaintiff] has proved one or more
rest break violations, [name of defendant] must pay one additional hour
of pay at [name of plaintiff]’s regular rate of pay. You must determine the
amount of pay owed for the rest break violations that [name of plaintiff]
has proved.
[The “regular rate of pay” for [name of plaintiff] from [insert beginning
date] to [insert ending date] was [insert applicable formula]. [Repeat as
necessary for date ranges with different regular rates of pay.] Multiply the
regular rate of pay by the number of workdays for which [name of
plaintiff] has proved one or more rest break violations.]
New December 2022
Directions for Use
Give this instruction with CACI No. 2760, Rest Break Violations-Introduction, and
CACI No. 2761, Rest Break Violations-Essential Factual Elements.
Regular rate of pay includes the employee’s base hourly rate of pay and all other
forms of nondiscretionary compensation earned during the same pay period,
including, for example, nondiscretionary bonuses, commissions, and shift
differentials. (See Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 878
[280 Cal.Rptr.3d 783, 489 P.3d 1166] [holding that “the term ‘regular rate of
compensation’ in [Labor Code] section 226.7(c) has the same meaning as ‘regular
rate of pay’ in [Labor Code] section 510(a) and encompasses not only hourly wages
but all nondiscretionary payments for work performed by the employee”].) The
regular rate of pay may be different over different periods of time. The court must
determine the method for calculating plaintiff’s regular rate of pay. If different
regular rates of pay are at issue, define the plaintiff’s regular rate of pay for all
relevant date ranges.
An employer must pay a premium wage of one hour of pay at the employee’s
regular rate of compensation for any rest breaks not provided. (Lab. Code,
§ 226.7(c).) This instruction may need to be modified if there is evidence of an
employers paying premium wages for any rest break violations.
The definition of “regular rate of pay” may be omitted if it is included in another
instruction.
Sources and Authority
Right of Action for Missed Meal and Rest and Recovery Periods. Labor Code
section 226.7.
Rest Periods. Cal. Code Regs., tit. 8, § 11010 et seq., subd. 12.
“[W]e hold that the term ‘regular rate of compensation’ in section 226.7(c) has
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the same meaning as ‘regular rate of pay’ in section 510(a) and encompasses not
only hourly wages but all nondiscretionary payments for work performed by the
employee. This interpretation of section 226.7(c) comports with the remedial
purpose of the Labor Code and wage orders and with our general guidance that
the ‘state’s labor laws are to be liberally construed in favor of worker
protection.’ (Ferra, supra, 11 Cal.5th at p. 878.)
“[W]e hold that the Court of Appeal erred in construing section 226.7 as a
penalty and applying a one-year statute of limitations. The statute’s plain
language, the administrative and legislative history, and the compensatory
purpose of the remedy compel the conclusion that the ‘additional hour of pay’ is
a premium wage intended to compensate employees, not a penalty.” (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [56 Cal.Rptr.3d
880, 155 P.3d 284], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 390
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4.1, 4.74, 4.76 (Thomson
Reuters)
2763-2764. Reserved for Future Use
LABOR CODE ACTIONS CACI No. 2762
89

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