Judicial Council Coordination Proceeding No. 4606
The opinion of the court was delivered by: Bigelow, P. J.
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDING in mandate. Carl. J. West, Judge. Petition denied.
Furutani & Peters, John A. Furutani, Duckworth; Peters & Lebowitz, and Mark C. Peters for Real Party in Interest.
Labor Code section 226.7 requires an employer who fails to provide an employee with a meal or rest period to pay that employee one additional hour of pay (or premium payment) "for each work day that the meal or rest period is not provided."*fn1 The question before us is whether this statute authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day - one for failure to provide a meal period and another for failure to provide a rest period. We conclude section 226.7 permits up to two premium payments per work day.
FACTUAL AND PROCEDURAL BACKGROUND
United Parcel Service, Inc. (UPS) is the employer defendant in 32 coordinated actions by employees who are seeking compensation for, among other things, UPS's alleged failure to provide meal and rest periods pursuant to section 226.7. That statute provides:
"(a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. [¶] (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, 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."
UPS moved the trial court to sever and make a pretrial determination concerning the amount of damages available under section 226.7. (See Code Civ. Proc., § 1048, subd. (b).) UPS argued that only one premium payment is allowable per work day, regardless of the number or type of break periods that were not provided. The employee plaintiffs disagreed, contending section 226.7, as well as the Industrial Welfare Commission's (IWC) Wage Order No. 9-2001 (which applies to employees in the transportation industry), allow up to two premium payments per work day - one for failure to provide meal periods, and another for failure to provide rest periods.
After a full hearing on the motion, the trial court disagreed with UPS and concluded section 226.7 allowed up to two premium payments per work day. Among other things, the court found persuasive a recent federal district court case decided in Los Angeles where the court held the IWC's wage orders provided "a separate remedy for violations of meal period requirements and violations of rest period requirements" and that the separate remedies were not inconsistent with the language of section 226.7. (Marlo v. United Parcel Service, Inc. (C.D. Cal. May 5, 2009, CV 03-04336 DDP) 2009 U.S. Dist. Lexis 41948, p. 21 (Marlo).)
UPS filed a petition for writ of mandate challenging the trial court's ruling, arguing section 226.7 precludes more than a single premium payment per work day, despite the fact an employer may have failed to provide both a meal and rest period in a particular day. We issued an order to show cause and heard oral argument in order to determine this significant legal issue and provide some guidance in the numerous coordinated cases before the trial court. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 851; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129.)
1. Principles of Statutory Interpretation and ...