Waiting Time Penalties on Meal Period Pay

We keep seeing defense motions to strike waiting time penalties from pleadings involving meal period violations. We keep seeing them denied. So far, there is little express authority confirming that the holding in Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 makes such penalty wages available to a meal period pay claimant.

The DLSE's position is as follows:

The Murphy decision, by implication, allows employees who are owed LC 226.7 pay at time of termination, to recover waiting time penalties pursuant to LC 203 if all final wages are not paid in accordance with LC 201/202. The Court also determined that reporting time pay and split shift premiums are wages, therefore, they would also be subject to LC 203 penalties (and interest).

In each case, the plaintiffs cite Murphy, while the defendants boldly assert and attempt to plausibly maintain that meal period wages are different from ordinary wages, marking a distinction relevant to the right to recover waiting time penalties.

Comments

[Craig Ackermann]

Some dicta in Brewer v. Premier Golf Properties, 168 Cal.App.4th 1243, 1254, n. 9 (December 3, 2008), a case holding that punitive damages are not recoverable in missed meal period premium pay claims brought under Labor Code section 226.7, further supports the notion that a plaintiff who prevails on a missed meal period claim can recover waiting time penalties under section 203 based solely on the underlying missed meal period claim.

Specifically, in footnote 9 of Brewer, the Court of Appeal noted:

"To the extent section 226.7 imposes a requirement to compensate the employee with “premium wage[s] intended to compensate employees” for the missed meal or rest breaks, Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th at p. 1114, and the employer failed to pay the employee the additional compensation required by section 226.7, the additional penalties applicable for “pay stub” violations or other defaults in the payment of wages due (such as the “waiting” time penalties under section 203) are arguably triggered." (emphasis added).

Although this footnote was dicta and hardly dispositive of the legal issue, the Court's recognition that 203 penalties are "arguably triggered" based solely on the underlying failure to pay the missed meal period premium pay is significant, particularly in light of section 4.3.4.1 of the DLSE Manual which also indicates that 203 waiting time penalties may be triggered by underlying 226.7 violations.