DLSE's View on What it Means to "Authorize and Permit"

IWC Wage Order 14, which governs hours and working conditions for farm workers, requires employers to "authorize and permit" employees to take meal periods and rest periods. This "authorize and permit" language appears in most other wage orders as to rest periods, but not meal periods. The language is in stark contrast to the meal period language of other wage orders ("no employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes"), for which the DLSE policy is set forth in section 45.2.1 of the DLSE enforcement policy and interpretations manual.

A February 2007 DLSE memo defines the meaning of the phrase "authorize and permit" in the meal period requirement of Wage Order 14. Lupe Almaraz, who retired last year as Deputy Chief of DLSE, issued a memo to DLSE staff regarding the meal period requirement under Wage Order 14. It states that an employer must

"authorize the worker to take a meal period and not dissuade or deny the worker the opportunity for the entitled meal period..."

In essence, in DLSE enforcement actions, this shifts the burden to employees to prove not only that he or she was not permitted to take a meal period, but that the employer affirmatively dissuaded or denied the meal period. It leaves open to interpretation whether the employer is liable for meal periods that could not be taken simply because the workload does not leave any opportunity to take the break without the employee failing to perform necessary job duties. The memo is an "underground regulation" which the courts need not follow, but nonetheless is appearing more frequently in state court law and motion in support of employers' motions regarding pleadings, discovery, certification and summary adjudication.

At some point in the next month or two, we might get a ruling from the Fourth District Court of Appeal in the Brinker case, which is set for argument this afternoon, as to what it means to "provide" a meal period or "authorize and permit" a meal period or rest period.

Comments

[Peanut Gallery]

I was at the hearing yesterday in that Brinker case, and I thought Mike Singer's argument was brilliant. The justices seemed to get it. If the new opinion is significantly different from the original opinion, you will all know who to thank.