Investigation of Underpaid Meal and Rest Breaks in California

Migliaccio & Rathod is investigating various California employers for failure to properly compensate employees for meal and rest breaks. The California Supreme Court recently released a ruling through which they established that meal and rest break premiums are to be paid at the regular rate, not the hourly rate of pay. This ruling, they elaborated, applies retroactively, so employers may owe their employees backpay, even if they correct the pay practice moving forward.

An employee’s regular rate of pay is calculated by including all non-discretionary, non-overtime earnings of a pay period and dividing by all hours worked, including overtime hours. These earnings include when employers pay workers over and above their normal hourly wages, for example through “allowances,” “bonuses,” or “differentials.” Unfortunately, employers often fail to include this additional pay when calculating employee regular rates and consequently short-change their employees a subtle, yet substantial, amount. For more information on regular rate violations, visit our separate investigation on bonus and overtime calculations.

In the case of meal and rest break calculations in California, an example of a regular rate calculation may look as follows:

If a construction worker, who earns $10/hour, works forty hours in a one week (5 day) pay period and also receives $10 each day as a “site allowance,” their regular rate, at which the employee should be paid for meal and rest breaks, would be $11.25/hour rather than their hourly rate of $10/ hour.

The equations would be:

Total weekly earnings = ($10/hour * 40 hours) + ($10/day *5 days)=$450

Regular rate = total weekly earnings/ hours worked within week= $450/ 40=$11.25

The worker should then be paid at this higher regular rate for their meal and rest break.

Are you an hourly employee who has earned or earns any non-discretionary extra pay (e.g. performance or spotlight awards, COVID or hazard pay) in the last three years and suspect it was or is not factored into your meal and rest break pay?

If so, we would like to hear from you. Please complete the contact form on this page, send us an email at [email protected], or give us a call at (202) 470-3520 for more information. If you qualify, an attorney will contact you to discuss the details of your potential case at no charge to you.

Attorneys Committed to Fighting Wage Theft

The lawyers at Migliaccio & Rathod LLP have years of experience in class action litigation against large corporations, including in cases involving wage theft and unfair & deceptive trade practices. More information about our current cases and investigations is available on our blog.