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    « The FLSA and Supplemental Jurisdiction | Main | LMRA Does Not Preempt California Wage and Hour Laws »


    kent mannis

    Here's what I got: Generally, premiums (such as show-up, split shift, and overtime pay) are not included in the "regular rate."

    But, a Littler article distinguishes premiums for worktime (e.g., shift differential) from premiums for non-worktime (show-up and split shift), pointing out the former are included while the later excluded. Per Littler (see text for footnote 19 at online): "While the Labor Commissioner had informally opined that such premiums are not included in the regular rate of pay, the remedies for missed meal and rest periods are akin to the premiums paid for working off-hours shifts, and such shift differential premiums are included in the overtime calculation. Inasmuch as the meal and rest period premiums are pay for work actually performed, it is difficult to exclude such amounts from the regular rate on the basis that pay for time not worked, such as minimum reporting pay, is excluded from the regular rate of pay."

    However, the Labor Commissioner amended the DLSE manual §49.1.3 on 5/2/07 to say the "extra hour" premium is EXcluded. It now reads: "Reporting Time Pay, Extra Hour For Failure To Provide Meal Period, Extra Hour For Failure To Provide Break And Split Shift Pay Need Not Be Included. In Murphy v. Kenneth Cole (2007) 2007 WL 1111223, the Court indicated that meal period pay, rest period pay, reporting time pay and split shift premium are all forms of pay similar to overtime premium. Because these payments are in the nature of premiums required by law, they are not included in computing the regular rate of pay on the same basis that overtime premium is not included in regular rate calculations."


    LC 226.7(b) provides, "If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the IWC, the employer shall pay the employee one additional hour of pay at the employee's REGULAR RATE of compensation for each work day that the meal or rest period is not provided.

    1. Does this language not presuppose you calculate the "regular rate" independent of missed meal/rest pay and then multiply that computed rate by the number of missed meals?

    2. If you include LC 226.7 pay into the regular rate computations don't you get caught up in noncomputable, circuitous, mathematical calculations (eg., the missed meal/rest payment must be paid at the "regular rate" but the regular rate must include the missed meal/rest break payment)?

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