CACI No. 2766B. Meal Break Violations - Rebuttable Presumption - Employer Records
Judicial Council of California Civil Jury Instructions (2024 edition)
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2766B.Meal Break Violations - Rebuttable
Presumption - Employer Records
An employer must keep accurate records of the start and end times of
each meal break. [Specify noncompliance in records that gives rise to
rebuttable presumption of meal break violation, e.g., missing time records,
records showing missed meal breaks, meal breaks of less than 30 minutes, or
meal breaks taken too late in a workday may prove a meal break violation.]
If you decide that [name of plaintiff] has proved that [[name of defendant]
did not keep accurate records of compliant meal breaks/[name of
defendant]’s records show [missed/ [,/or] shortened/ [,/or] delayed] meal
breaks], then your decision on [name of plaintiff]’s meal break claim must
be for [name of plaintiff] unless [name of defendant] proves all of the
following:
1. That [name of defendant] provided [name of plaintiff] a reasonable
opportunity to take uninterrupted 30-minute meal breaks on
time;
2. That [name of defendant] did not impede [name of plaintiff] from
taking 30-minute meal breaks;
3. That [name of defendant] did not discourage [name of plaintiff]
from taking 30-minute meal breaks;
4. That [name of defendant] relieved [name of plaintiff] of all duties
during 30-minute meal breaks; and
5. That [name of defendant] relinquished control over [name of
plaintiff]’s activities during 30-minute meal breaks.
If you decide that [name of defendant] has proved all of the above for
each meal break, then there have been no meal break violations and
your decision must be for [name of defendant].
However, if you decide that [name of defendant] has not proved all of the
above for each meal break, then you must still decide how many
workdays [name of defendant] did not prove all of the above and you
must determine the amount of pay owed.
[Name of defendant] must pay one additional hour of pay at [name of
plaintiff]’s regular rate of pay for each workday on which [name of
defendant] did not prove all of the above.
[The “regular rate of pay” for [name of plaintiff] from [insert beginning
date] to [insert ending date] was [insert applicable formula]. [Repeat as
necessary for date ranges with different regular rates of pay.] Multiply the
regular rate of pay by the number of workdays for which [name of
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defendant] did not prove all of the above.]]
New December 2022
Directions for Use
Employer records showing noncompliant meal breaks raise a rebuttable presumption
of a meal break violation. (See Donohue v. AMN Services, LLC (2021) 11 Cal.5th
58, 61 [275 Cal.Rptr.3d 422, 481 P.3d 661] [“time records showing noncompliant
meal periods raise a rebuttable presumption of meal period violations”].) Note that
employers need not record meal breaks during which all operations cease. (See, e.g.,
Cal. Code Regs., tit. 8, § 11010, subd. 7(A)(1).)
Regular rate of pay includes the employee’s base hourly rate of pay and all other
forms of non-discretionary compensation earned during the same pay period,
including, for example, nondiscretionary bonuses, commissions, and shift
differentials. (See Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 878
[280 Cal.Rptr.3d 783, 489 P.3d 1166] [holding that “the term ‘regular rate of
compensation’ in [Labor Code] section 226.7(c) has the same meaning as ‘regular
rate of pay’ in [Labor Code] section 510(a) and encompasses not only hourly wages
but all nondiscretionary payments for work performed by the employee”].) The
regular rate of pay may be different over different periods of time. The court must
determine the method for calculating plaintiff’s regular rate of pay. If different
regular rates of pay are at issue, define the plaintiff’s regular rate of pay for all
relevant date ranges.
An employer must pay a premium wage of one hour of pay at the employee’s
regular rate of compensation for any meal breaks not provided. (Lab. Code,
§ 226.7(c).) This instruction may need to be modified if there is evidence of an
employer’s paying premium wages for any meal breaks.
The definition of “regular rate of pay” may be omitted if it is included in another
instruction.
Sources and Authority
• Right of Action for Missed Meal and Rest and Recovery Periods. Labor Code
section 226.7.
• Meal Periods. Labor Code section 512.
• Meal Periods. Cal. Code Regs., tit. 8, § 11010 et seq., subd. 11.
• Employer Duty to Keep Time Records. Cal. Code Regs., tit. 8, §§ 11010-11030,
11060-11110, 11150, ¶ 11(C), 11040-11050 & 11130-11140, ¶ 11(A), § 11120,
¶ 11(B), § 11160, ¶ 10(D).
• “[W]e hold that time records showing noncompliant meal periods raise a
rebuttable presumption of meal period violations, including at the summary
judgment stage.” (Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 61 [275
Cal.Rptr.3d 422, 481 P.3d 661].)
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• “The practice of rounding time punches for meal periods is inconsistent with the
purpose of the Labor Code provisions and the IWC wage order. The text of
Labor Code section 512 and Wage Order No. 4 sets precise time requirements
for meal periods. Each meal period must be ‘not less than 30 minutes,’ and no
employee shall work ‘more than five hours per day’ or ‘more than 10 hours per
day’ without being provided with a meal period. These provisions speak directly
to the calculation of time for meal period purposes. [¶ ] The precision of the
time requirements set out in Labor Code section 512 and Wage Order No.
4 - ‘not less than 30 minutes’ and ‘five hours per day’ or ‘10 hours per day’ - is
at odds with the imprecise calculations that rounding involves. The regulatory
scheme that encompasses the meal period provisions is concerned with small
amounts of time. For example, we have ‘requir[ed] strict adherence to’ the Labor
Code’s requirement that employees receive two daily 10-minute rest periods and
‘scrupulously guarded against encroachments on’ these periods. The same
vigilance is warranted here. Given the relatively short length of a 30-minute
meal period, the potential incursion that might result from rounding is
significant.” (Donohue, supra, 11 Cal.5th at p. 68, internal citations omitted.)
• “Because time records are required to be accurate, it makes sense to apply a
rebuttable presumption of liability when records show noncompliant meal
periods. If the records are accurate, then the records reflect an employer’s true
liability; applying the presumption would not adversely affect an employer that
has complied with meal period requirements and has maintained accurate
records. If the records are incomplete or inaccurate - for example, the records do
not clearly indicate whether the employee chose to work during meal periods
despite bona fide relief from duty - then the employer can offer evidence to
rebut the presumption. It is appropriate to place the burden on the employer to
plead and prove, as an affirmative defense, that it genuinely relieved employees
from duty during meal periods. ‘To place the burden elsewhere would offer an
employer an incentive to avoid its recording duty and a potential windfall from
the failure to record meal periods.’ ” (Donohue, supra, 11 Cal.5th at p. 76,
internal citations omitted.)
• “[Defendant] misunderstands how the rebuttable presumption operates at the
summary judgment stage. Applying the presumption does not mean that time
records showing missed, short, or delayed meal periods result in ‘automatic
liability’ for employers. If time records show missed, short, or delayed meal
periods with no indication of proper compensation, then a rebuttable presumption
arises. Employers can rebut the presumption by presenting evidence that
employees were compensated for noncompliant meal periods or that they had in
fact been provided compliant meal periods during which they chose to work.
‘Representative testimony, surveys, and statistical analysis,’ along with other
types of evidence, ‘are available as tools to render manageable determinations of
the extent of liability.’ Altogether, this evidence presented at summary judgment
may reveal that there are no triable issues of material fact. The rebuttable
presumption does not require employers to police meal periods. Instead, it
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requires employers to give employees a mechanism for recording their meal
periods and to ensure that employees use the mechanism properly.” (Donohue,
supra, 11 Cal.5th at 77, internal citation omitted.)
• “[W]e hold that the term ‘regular rate of compensation’ in section 226.7(c) has
the same meaning as ‘regular rate of pay’ in section 510(a) and encompasses not
only hourly wages but all nondiscretionary payments for work performed by the
employee. This interpretation of section 226.7(c) comports with the remedial
purpose of the Labor Code and wage orders and with our general guidance that
the ‘state’s labor laws are to be liberally construed in favor of worker
protection.’ ” (Ferra, supra, 11 Cal.5th at p. 878.)
• “[W]e construe the Legislature’s use of the disjunctive as permitting an
additional hour of pay for each work day that either type of break period is
violated. We agree with the district court in Marlo [v. United Parcel Service,
Inc.] that allowing an employee to recover one additional hour of pay for each
type of violation per work day is not contrary to the ‘one additional hour’ and
‘per work day’ wording in subdivision (b). [¶] We further agree with Marlo that
construing section 226.7, subdivision (b), as permitting one premium payment
for each type of break violation is in accordance with and furthers the public
policy behind the meal and rest break mandates.” (United Parcel Service Wage
& Hour Cases (2011) 196 Cal.App.4th 57, 69 [125 Cal.Rptr.3d 384].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390-391
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4.4, 4.21 (Thomson Reuters)
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