Missed break payments should be timely paid and reported in pay stubs
Protecting Employee & Consumer Rights

Missed break payments should be timely paid and reported in pay stubs

Gustavo Naranjo worked as a guard for Spectrum Security Services, Inc. (Spectrum), which contracts with federal agencies to transport prisoners who have appointments outside custodial facilities. Naranjo was fired after leaving his post to take a meal break, in violation of a Spectrum policy that required custodial employees to remain on duty during all meal breaks.


Naranjo filed a class action on behalf of himself and other Spectrum employees, alleging that Spectrum violated state meal break requirements under the Labor Code. The complaint sought an additional hour of pay (also known as “premium pay”) for each day on which Spectrum failed to provide employees a meal break.

After several hurdles, the trial court certified a class for the meal break and related timely payment and wage statement claims and then held a trial in stages. In determining the employer’s liability for meal break violations, the court noted that an employer ordinarily must provide covered employees an off-duty meal period on shifts lasting longer than five hours. An exception to this requirement allows for “on duty” meal periods if “the nature of the work prevents an employee from being relieved of all duty,” but only when “by written agreement between the parties an on-the-job paid meal period is agreed to.”


Naranjo did not dispute that Spectrum had always required on-duty meal periods as company policy because of the nature of its guards’ work. However, Spectrum did not have a valid written on-duty meal break agreement with its employees. Because of this, the court found Spectrum liable missed meal periods from June 2004 to September 2007 (A jury found Spectrum not liable for the period beginning on October 1, 2007, after Spectrum had circulated and obtained written consent to its on-duty meal break policy.)

Two questions remain: 1) Should these premium pay for missed breaks be reflected on the employees’ paystubs? and 2) Should these premium pay be timely paid once the employee has ended employment? The first question determines whether the employee should be paid for having been issued an incomplete paystub. The second question determines whether the employee should be paid “waiting time” penalty for not receiving premium pay at the time their wages were due. The answers depend on whether the premium pay for missed breaks is a penalty or a wage. The issue reached the California Supreme Court.

California law requires employers to provide daily meal and rest breaks to non-exempt employees. If an employer makes an employee work during all or part of a meal or rest period, the employer must pay the employee an additional hour of pay. As the high court puts it, the primary issue is whether this premium pay constitutes “wages” that must be reported on paystubs and paid promptly when an employee leaves the job.

The high court ruled that missed-break premium pay is indeed wages subject to the Labor Code’s timely payment and reporting requirements. Although the extra pay is designed to compensate for the unlawful deprivation of a guaranteed break, it also compensates for the work the employee performed during the break period.

As a recap of the current law in California, employers must provide a 30-minute uninterrupted meal period to employees for every 5 hours of work. Thus, for a 12-hour shift, two 30-minute meal breaks must be provided. “Providing” a meal period means the employer must provide an off-duty meal period. “Off-duty” means employees are 1) relieved of all duty for an uninterrupted period of 30 minutes; 2) free to leave the workplace; and 3) not controlled by the employer as to their activities during the break.

Employers must also provide employees a “net 10-minute” paid rest break for every four hours worked or major fraction thereof. The rest break should be in the middle of the work period.

If an employer does not authorize or allow a meal or rest break, the employee must be paid one hour at the employee’s regular rate of pay for each workday that a meal period is not provided, and an additional one hour at the employee’s regular rate of pay if a rest period is not provided.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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TAGS: wage and hour issues
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