CACI No. 2767. Meal Break Violations - Pay Owed

Judicial Council of California Civil Jury Instructions (2023 edition)

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2767.Meal Break Violations - Pay Owed
For each workday on which [name of plaintiff] has proved one or more
meal 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 meal 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 meal break violations.]
New December 2022
Directions for Use
Give this instruction with CACI No. 2765, Meal Break Violations-Introduction, and
CACI No. 2766A, Meal Break Violations-Essential Factual Elements. Do not give
this instruction for any meal break claims involving the rebuttable presumption of a
violation based on an employers records. (See CACI No. 2766B, Meal Breaks Not
Provided-Rebuttable Presumption-Employer Records.)
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 meal 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 meal breaks.
The definition of “regular rate of pay” may be omitted if it is included in another
Sources and Authority
Right of Action For Missed Meal Period. Labor Code section 226.7.
Meal Periods. Labor Code section 512.
“[W]e hold that the term ‘regular rate of compensation’ in section 226.7(c) has
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.)
“Section 226.7 missed-break premium pay does differ from these examples in
that it aims to remedy a legal violation. The law permits an employer to allow
an employee to work overtime hours, or to work a split shift, provided the
employee is paid extra for it, but the law generally does not permit an employer
to deprive an employee of a meal or rest break. But why should this difference
matter? That missed-break premium pay serves as a remedy for a legal violation
does not change the fact that the premium pay also compensates for labor
performed under conditions of hardship. One need not exclude the other.”
(Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 108 [293
Cal.Rptr.3d 599, 509 P.3d 956].)
“[T]he Legislature requires employers to pay missed-break premium pay on an
ongoing, running basis, just like other forms of wages.” (Naranjo, supra, 13
Cal.5th at p. 110, internal citations omitted.)
“The employee who remains on duty without a timely break has ‘earned’
premium pay within any ordinary sense of the word.” (Naranjo, supra, 13
Cal.5th at p. 115.)
“[W]e 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 Marlo [v. United Parcel Service,
Inc.] 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). [¶] We further agree with Marlo 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.” (United Parcel Service Wage
& Hour Cases (2011) 196 Cal.App.4th 57, 69 [125 Cal.Rptr.3d 384].)
“[U]nder the law as enacted, ‘an employee is entitled to the additional hour of
pay immediately upon being forced to miss a rest or meal period.’ (Naranjo,
supra, 13 Cal.5th at p. 115, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390-391
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, 4.4, 4.21, 4.74, 4.76
(Thomson Reuters)
2768-2769. Reserved for Future Use

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