California Premium Pay Claim
In California, employers must provide workers meal, rest, and recovery breaks. Employers that fail to provide code compliant, uninterrupted meal, rest, and recovery breaks must pay workers premium pay. Have you been denied meal breaks, rest breaks, or recovery breaks? Contact Astanehe Law today to speak with an employment attorney about your right to recover premium pay.
California Workers Have A Right to Meal, Rest, and Recovery Breaks by Law
Under California Labor Code section 512, employers must provide California employees with uninterrupted meal breaks as follows:
- One thirty minute, uninterrupted, unpaid meal break where the employee works more than five hours. Except, the employee may waive their meal break if the employee’s shift is no more than six hours;
- A second thirty minute, uninterrupted, unpaid meal break where the employee works more than six hour. Except, the employee may waive their meal break if the employee’s shift is no more than twelve hours.
Under California Code of Regulations title 8, section 11090, employers must provide California employees with uninterrupted, paid rest breaks as follows:
- One ten minute rest break per four hours worker. However, the employee is not entitled to a rest break when their total shift is fewer three and a half hours;
Employees working outdoors are entitled to take a recovery break to cool down and prevent heat illness. Employers must allow and encourage recovery breaks, which must be at least five minutes long. The employer cannot require an employee to be on-call during rest and recovery breaks.
When Meal, Rest, or Recovery Breaks are Denied or Interrupted, California Workers Entitled to Premium Pay
When a meal, rest, or recovery break is denied or interrupted, California workers must be paid premium pay in the form of one additional hour of pay at their regular rate of compensation for each type of break that is denied. This means that the California employee may recover an hour of premium pay for a denied lunch, and an hour of premium pay for a denied rest break. However, where an employee is not provided two rest breaks, they are only entitled to an hour of premium pay, not two hours.
Calculating Premium Pay
Premium pay includes the California worker’s straight time rate (hourly rate) as well as nondiscretionary wages, such as incentive bonuses, attendance bonuses, performance bonuses, and hiring bonuses. This means that premium pay can vary between pay periods as the employee’s discretionary pay may not always be the same. As a result, it is imperative that an employee check their wage statements closely to ensure that they receive the full and correct premium pay for each missed break.
Numerous California Workers Are Owed Premium Pay
In July 2021, the Supreme Court recently published an opinion that altered the method for calculating premium pay statewide. In Ferra v. Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021), the Court concluded that premium pay included nondiscretionary wages. Previously, employers did not consider nondiscretionary wages when calculating premium pay. The Court explicitly held that the change was retroactive. This means that thousands of California workers are entitled to retroactive premium payments, even where they might have already received premium pay. However, the clock is ticking. Statute of limitations will quickly bar the right to recover. California workers must act quickly and request all retroactive premium payments from their employer.
What Are California Employee Options Where an Employer Refuses to Pay Premium Pay
Where an employer refuses to pay premium pay at all or properly, the employee has many options, including but not limited to:
- Filing an internal complaint;
- Requesting an accounting from the employer;
- Filing a claim at the Labor Commissioner’s Office;
- Filing a lawsuit in Court; or,
- Retaining an attorney.
California workers seeking an attorney should contact Astanehe Law to discuss their options, including potential representation. P: (415) 226-7170. E: email@example.com.