California Supreme Court Clarified Rule for Calculating Meal and Rest Period Premiums, and it Applies Retroactively!

On July 15, 2021, the California Supreme Court, in Ferra v. Loews Hollywood Hotel, LLC, clarified the rule for calculating the premium required when employees are unable, because of workload, to take a timely rest or meal period. Given the potential for employees to sue employers in class actions for failing to strictly comply with this rule, and the fact that the holding applies retroactively, this is a significant development.
By way of background, California employers are required to provide nonexempt employees a paid 10-minute rest period for every 4-hours of work, and an unpaid 30-minute uninterrupted meal period by the end of the 5th hour (and 10th hour, if applicable) of work. These rules should already be quite familiar to employers.
The California legislature recognizes this is not always possible due to an employee’s workload or other issues. Therefore, an employee who is not provided required rest and/or meal periods must be paid an additional hour of pay at the employee’s “regular rate of compensation” for every missed meal or rest period. Until the Ferra decision, this “regular rate of compensation” was simply a worker’s hourly wage, without regard to additional, non-discretionary payments, such as bonuses or shift differentials.
In Ferra, the Court held the opposite, that meal or rest period premiums must be paid at a rate of pay that reflects regular pay + incentives, such as non-discretionary bonuses or shift differentials. Calculating this “regular rate of compensation” for rest and meal period premiums now mirrors the formula previously applied to determine the “regular rate of pay” when calculating overtime premium pay.
If an employee is indeed paid non-discretionary bonus or incentive pay, the calculation of his or her “regular rate of compensation” can initially seem somewhat daunting. Consider an employee who earns $17/hr, but also receives an additional $3/hr shift differential when she works a night shift. In a particular week, she works 60 hours (40 regular hours, 13 overtime hours and 5 double time hours). Of those 60 hours, 30 are paid at the employee’s base rate of $17, and the remaining 30 hours are paid at $20/hr to reflect the $3 night shift differential.
Under the old rule, any rest or meal period premium would be paid at the employee’s base pay, $17. However, under the Ferra holding, an additional calculation must be conducted, which establishes the rest or meal period premium must be paid at the weighted average rate of $18.50. (Total compensation is $1,110, divided by 50 hours, equals the weighted average rate of $18.50; this is her “regular rate of compensation” for that week only.)
Given this development, what should employers do? We recommend the following:
  • Ensure your timekeeping system recognizes each instance in which an employee is not afforded an uninterrupted 10-minute rest period during every 4 hours of work, or does not begin a 30-minute uninterrupted, unpaid meal period by the end of his/her 5th hour of work;
  • Ensure your payroll provider is properly calculating the rest or meal period premium under the formula described above;
  • Monitor employee practices to ensure employees are timely taking required rest and meal periods, to reduce the incidence and incidental cost of rest and meal period premiums. Opportunistic employees may abuse the system and routinely collect a rest or meal period premium. Employers should conduct training or, in some circumstances, discipline employees who are unnecessarily triggering rest or meal period premiums.
  • If the term “nonexempt” is unfamiliar, or if you were unaware of the rules regarding rest and meal periods, or the requirement to provide a rest or meal period “premium,” don’t be embarrassed. However, if you have any hourly workers, you absolutely must know these rules or you are potentially at risk for very costly administrative actions or civil lawsuits. Please contact us so we can explain these rules to you an help you stay in compliance with California’s strict wage-hour laws.

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