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Current Employer Notifications and News

Current Employer Notifications, News and Publications

July 16, 2021
-Reprinted with permission/ ACG Consulting Services-

On July 15, 2021, the California Supreme Court in Ferra v. Loews 
Hollywood Hotel, LLC  adopted a new formula for calculating the one extra hour of premium pay those employees are owed if an employer
fails to provide a compliant meal period or rest break. Specifically, the Court held that those premium payments must include the hourly value of any non-discretionary earnings (such as a non-discretionary bonus) and cannot simply be paid an employee’s base hourly rate. This holding aligns the formula for calculating meal period and rest break premium payments with the formula for calculating overtime payments under California law.

The Ferra decision represents a change in the law, as the California Court of Appeal and several federal district courts had previously held that California Labor Code section 226.7’s use of the term“ regular rate of compensation” meant that premium payments for failures to provide meal periods or rest breaks should be calculated using an employee’s base hourly rate.Despite this shift, however, the California Supreme Court held that its decision applies retroactively.

Considering Ferra, employers should take steps to evaluate whether their calculation of premium payments for the non-provision of meal periods and rest breaks includes non-discretionary payments, as well as assess the impact of the decision on any pending meal period or rest break litigation.

The Ferra decision holds That Non-discretionary Earnings Must Be Included in the Calculation of Meal Period and Rest Break Premiums-

California courts have long held that premium wages for calculating overtime pay must factor in the hourly value of non-discretionary earnings. However, in Ferra, the California Supreme Court held that "regular rate of compensation” and "regular rate of pay” are interchangeable terms, and therefore "premium pay for a non-compliant meal, rest, or recovery period, like the calculation of overtime pay, must account for not only hourly wages but also other non-discretionary payments for work performed by the employee.”

The Court explained that, in enacting Labor Code section 226.7, the California Legislature did so with an understanding that the federal Fair Labor Standards Act’s use of the phrase "regular rate” has been "consistently encompass all non-discretionary payments, not just base hourly rates."  With this context, the Court concluded the "regular rate" was the "operative term" in the statute, and that the modifiers "of pay" and "of compensation" were intended to be used interchangeably.

The Court also held that its decision applies retroactively, emphasizing that it had not previously issued a definitive decision on the issue.

Ferra’s Impact on Employers

Employers should review their how they are calculating any meal period or rest break premium payments to ensure that they include the value of any non-discretionary earnings during the relevant pay period. As for litigation regarding the improper calculation of meal period and rest break premiums, Ferra does not eliminate all defenses to such claims or ensure that class certification will be granted in such cases.  While Ferra clarifies how meal period and rest break premiums must be calculated, it says nothing at all regarding whether such premiums are owed in the first place.  This means, as Ferra itself recognized, that an "employer may defend against" a claim that it has failed to provide meal periods or rest breaks" as it has always done."  In other words, plaintiffs pursuing Ferra-based claims will still need to establish an entitlement to a premium in the first place, and under Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), this means plaintiffs must establish that a compliant meal period or rest break was not provided.
Some plaintiffs may attempt to skip over this important threshold requirement by pointing to the fact that an employer voluntarily made meal period or rest break premium payments and argue that such payments are evidence that they were not provided with compliant breaks.  But the fact that an employer may have made a meal period or rest break premium is not automatic evidence that a compliant meal period or rest break was not provided.  Employers often pay such premiums proactively and out of an abundance of caution, even where a premium was not in fact due.  In other words, employers do not need to concede that the payment of a premium establishes that an employee was entitled to it.
Moreover, even if a plaintiff can show that they were entitled to a meal period or rest break premium, they must also prove that they earned a form of non-discretionary pay during that same pay period that must be included in calculating the amount of the premium under the Ferra decision. Whether a particular payment was discretionary or non-discretionary is also often a highly fact-dependent inquiry.



ACG Consulting Services, Inc. has been assisting employers since 1973 by providing a helpful and experienced resource for guidance specific to employment, human resources, health, safety and environmental compliance. For further information regarding ACG Consulting Services or for question specific to the information contained within the current employer bulletin, contact Eric Martin at 1-949-452-1840 or email; 

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Contact ACG at 949- 452-1840 for more information on our Human Resources Services
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