More on the UCL and Prop 64 Retroactivity
November 10, 2005
Over at the UCL Practitioner, Kimberly A. Kralowec is beginning a series of posts analyzing Prop 64 and the "statutory repeal rule." It is great reading if you have any cases where Prop 64 retroactivity is an issue, especially since every single published case on the subject remains unciteable while the Supreme Court ponders in several pending cases and leaves others in the "grant review and hold" purgatory of appellate procedure.
We like to read the UCL Practitioner, because that blog is like a treatise, and the UCL is an important part of the California wage and hour law. It is the UCL that extends the statute of limitations to four years in wage cases. And, although we can't see an intellectually honest court doing so, if the Supreme Court eventually rules that meal and rest period pay is a penalty, the UCL and its restitutionary remedy will be the only remedy available against employers who robbed their workers of ten minutes of paid rest more than a year ago.
How can a court order "restitution" of a penalty? It cannot.
Posted by: | November 10, 2005 at 04:08 PM
One can certainly get restitution of ten minutes of pay for each paid break that was denied. Even if the hour of pay is wrongly found to be a penalty, and even if the legislature does not step in and correct the injnustice, the value of the labor during which a break was due and worked through is clearly not a penalty, and is clearly unfair competition, and is clearly subject to restitution. Thus, although the value of the restitution is only 10 to 30 minutes of pay per day (depending upon the number of breaks missed), employees can reach back four years to recover the value of the labor, or, depending upon how you frame it, the value of the pay due to them for the first ten, twenty or thirty minutes they spent off the clock, during which they should have been paid for a rest period.
Posted by: michael walsh | November 10, 2005 at 04:51 PM
Typically, if an employee does not take a break or a meal then he is already being compensated for his time. (E.g., Breaks are paid by definition and the loss of a break results in no loss of any wage, only in employer liability for a penalty.)
Posted by: | November 10, 2005 at 04:59 PM
If an employee is entitled to be at rest, and is paid the same for providing labor as he is for providing rest, the employer has received the value of ten minutes of labor at no cost if the worker is forced to work through his break. This is an unjust enrichment. Applying another theory, if the employee gets no breaks, then once he stops working, he should be paid for his first ten minutes (or twenty) during which he is not working. The refusal to pay for that 10-20 minutes of break taken after the employee stops working is a denial of a wage.
The restitution theory does not lend itself well, however, to the denial of an unpaid meal period.
The entitlement to pay for the value of a worker's labor existed long before the enactment of Labor Code 226.7, and we successfully argued for ten minutes of pay per day even when there was no statute, and hence no "penalty," even if you think (or, more likely, you are paid by the hour to claim) that the hour of pay under the statute is a penalty. I'd suggest that you identify yourself, commenter, but if my argument was that uninsightful, I'd remain anonymous, too.
Posted by: michael walsh | November 10, 2005 at 05:18 PM
Hi Michael -
I really appreciate your blog and find it helpful. I am in the midst of a couple of class actions and would be grateful if you could share an exemplar of your argument regarding the 10 minutes of restitution. I understand the argument, but it would probably take me awhile to "re-invent the wheel". Thanks for any help.
Posted by: Mike | November 16, 2005 at 01:59 PM