One of the things we discussed at last week's wage & hour seminar in Costa Mesa was the long list of questions that remain unanswered after Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094. Here's one we hadn't mentioned before:
Must meal and rest period premium wages be included in the "regular rate of pay" upon which overtime is calculated?
The DLSE originally said that such pay should not be included in the regular rate of pay, and most practitioners considered the question answered. However, with the way the Supreme Court analyzed the wage-penalty issue, some people think the answer is no longer so clear, and an argument can be made that such pay increases an employee's regular rate of pay for the purpose of calculating the correct overtime rate. We haven't seen any briefs arguing the point, and we haven't briefed the issue ourselves, but the point seems well worth raising.