Workers seek pay for the lunch not taken.

Hourly employees who say they didn't receive meal and rest breaks mandated by law are suing their employers for pay for the missed breaks--at least in the handful of states where labor laws explicitly allow such suits.

At least 10 states have labor laws with some form of meal-break compensation, said Eric Kingsley, an Encino, California, attorney who has represented employees in suits against several companies, including Aramark, California Pizza Kitchen, DHL, Hard Rock Cafe, and Olive Garden. The retail, restaurant, and trucking industries are the primary defendants, because they employ hourly workers for long shifts.

Kingsley represents many of the 150 workers who have filed claims with the California Department of Industrial Relations against the Cheesecake Factory; a motion for class action status is pending.

"For people in the field, like delivery drivers, it's difficult to take breaks. They're told to 'just get the job done.' And in restaurants, you have a unique situation because it's difficult to take a 30-minute break when you have tables [of customers] waiting," said Kingsley. "Plus, employers say staff don't want the breaks, they want the tips. But servers say they don't want to be on their feet for eight hours without a break."

Many of these suits have been brought in California, where state law requires employers who fail to provide meal breaks or rest periods to pay the employee for one additional hour at his or her regular rate for each work day that the break was not provided. Employers must give a 10-minute rest for every 4 hours worked and a 30-minute meal break for each "work period" of more than 5 hours. Between January 2001, when the law took effect, and August 2004, California levied almost $4 million in fines against employers for over 2,275 lost-break violations. The Department of Industrial Relations has received over 100 notifications of violations since last August.

A class action of 204,000 current and former employees against Wal-Mart for "engaging in a systematic scheme of wage abuse against its hourly paid employees in California," including preventing employees from taking rest and lunch breaks, is scheduled for trial in September. (Savaglio v. Wal-Mart Stores, Inc., No. 83587 (Cal., Alameda County Super. Ct. filed Feb. 6, 2001).) Wal-Mart faces a similar class action on behalf of 40,000 current and former employees in Washington state, and another on behalf of 50,000 workers in Massachusetts.

The difficulty with meal- and rest-break claims lies in whether the award should be considered wages (as is overtime pay) or a penalty. Wages claims give plaintiffs a three-year statute of limitations; the statute is only one year for penalty suits.

Plaintiffs deserve wages, not penalties, said Kingsley. "If you don't get your break, then you get an extra hour of wages--additional compensation for not getting the break," he said, noting that two California district courts have agreed. Citing the labor code's language, one court recently concluded that the recovery is wages that the employer has an obligation to pay, not a penalty for which an employee must make a claim. Furthermore, wages are paid to employees; penalties are generally paid to regulatory authorities. (Tomlinson v. Indymack, No. SACV04--294 JVS, 2005 WL 469291 (C.D. Cal. Feb. 18, 2005).)

Defendants argue that their employees have already been paid wages for the missed rest periods or meals through which they worked, so the award of one hour of pay is really a penalty.

Last December, Gov. Arnold Schwarzenegger, citing a growing number of fines and lawsuits, directed the state's Division of Labor Standards Enforcement to file a notice of proposed rulemaking that would amend the law governing meal and rest breaks.

The revised rules would treat the hour of pay owed for missed breaks as a penalty, not a wage; define "work period" and clarify when breaks can be taken; and establish criteria to determine whether an employer has met the requirement of providing a meal break.

A written comment period ended March 2. Kingsley predicted that the new rules would be adopted once the comments are compiled.