Employers Must Pay Employees For Time On The Clock, And Expense Reimbursements They Knew Or Should Have Known Of
Employers have to pay employees for meal breaks, overtime, and all types of wages if they knew the employee was working, or should have known, Brinker v. Sup. Crt., 53 Cal.4th 1004, 1040 (2012); Donohue v. AMN, 11 Cal.5th 58, 61. 67-68 (2021). The same is true for unreimbursed expenses. Wilson v. La Jolla Grp., 61 Cal.App.5th 897, 919 (2021) cited the standard from Stuart v. RadioShack Corp., 641 F.Supp.2d 901, 903 (N.D Cal. 2009) which every federal court in California agrees is the standard for expense reimbursements under California Labor Code Section 2802.
Legally, it is not relevant that an employee did not ask to be reimbursed for mileage or cell phone expenses when they were employed by the employer. Many individual and class actions for unpaid expenses involve employees who did not know the employer would reimburse them for expenses when they were employed, or they never asked during their employment.
Call +1 (818) 783-7300 if you want to sue for
time your employer knew or should have known you worked, or
you incurred expenses for work your employer did not
reimburse you for
The issue of proving the employer knew or should have known an employee worked overtime, worked through a meal break, or never received a rest break is subject to proof by the employee. In trial, Firm Head, Karl Gerber has proven employers knew or should have known his clients were working when clocked out as follows:
- Computer records show the employee performing work related tasks with patients when the employee was clocked out
- Electronic trucking logs kept for DOT purposes show the employee was driving when the employer claimed the employee was not working
- Text messages from supervisors and managers when the employee was off-the-clock
- Group chats employees had to participate in when they were not on the clock
- Witnesses testifying management told them, “There is no overtime” you just wasted 2-3 hours and you will have to make it up
- Witnesses testifying it was a common, known practice for employees to work off the clock
- It being a required practice for employees to field calls at home when not on the clock
- Management, supervisors, and team leads clocked the employees out
- Payroll records show supervisors and management adjusted original time punches of the employee which had the effect of erasing overtime, or making it look like meal breaks started before an employee’s 5th hour
How To Prove Employers Knew You Did Not Get A Meal Break
The employer must plead and prove the employee took the compliant meal break, and the employer genuinely relieved control of the employee for the meal break by showing records of compliant meal breaks taken, Id. at 76-78. “An employer's assertion that an employee waived a meal period ‘is not an element that a plaintiff must disprove as part of the plaintiff's case-in-chief.’ (Brinker, supra, 53 Cal.4th at p. 1053...Instead, the assertion is ‘an affirmative defense,’ and ‘the burden is on the employer, as the party asserting waiver, to plead and prove it.’ (Ibid.)...the presumption goes to the question of liability and applies at the summary judgment stage, not just at the class certification stage, “ Donohue at 75-76. “Where an employer fails to provide time records showing that a meal break was taken, a presumption can arise that the employee was not offered such a break. In that case, an employer's claim that a break was in fact offered but the employee declined it is an affirmative defense that the employer must prove,” Salazar v. See’s, 164 Cal.App.5th 85, 98 (2021) citing to Donahue.
If there are not any records that an employee took a meal break there is a presumption, the employer must rebut, the employee did not get the meal break.
“The employer must
compensate the employee for any time worked during the meal
period if “‘it ‘knew or reasonably should have known that the
worker was working through the authorized meal period.’”
Brinker, supra, 53 Cal.4th at p. 1040, fn. 19., “
Donohue, 68.
Employers Cannot Prevent Meal And Rest Breaks From Being Taken
“California law requires employers to provide daily meal and rest breaks to most unsalaried employees. If an employer unlawfully makes an employee work during all or part of a meal or rest period, the employer must pay the employee an additional hour of pay. (Lab. Code, § 226.7, subd. ©; Industrial Welf. Com. wage order No. 4-2001, §§ 11(B), 12(B).) The primary issue before us is whether this extra pay for missed breaks constitutes “wages” that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job (id., § 203), “ Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 101-102. Naranjo concluded a missed meal break was a wage.
Our firm’s recent recoveries for missed meal breaks, rest breaks, and unreimbursed expenses include:
$775,000 For small class action of employees not allowed meal breaks or cell phone reimbursements while caring for dependent adults
$400,000 Recovery following arbitration win for 4 employees who worked off the clock
* Please be advised that past results are not a guarantee nor prediction of future case results