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.
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:
- $1,150,000 Unpaid commissions of two plaintiffs
- $875,000 For 4 oil field service industry workers whose times worked were not recorded on timesheets and were on-call
- $800,000 Controlled stand by class action settlement
- $800,000 Failure to pay prevailing wage to maintenance technicians on state property
- $800,000 For mis-classified independent contractors
- $775,000 For small class action of employees not allowed meal breaks or cell phone reimbursements while caring for dependent adults
- $750,000 Disability discrimination settlement for employee who had heart problems
- $750,000 Sub-Minimum wage class action settlement
- $675,000 Sexual harassment in a warehouse
- $672,500 For sexual harassment at a truck stop
- $625,000 Whistle blower wrongfully terminated for making safety complaints
- $539,584 Myles v. Wellpoint Termination of Employment Due to Disability and Workers Compensation Injury
- $510,000 Class action settlement of 125 workers on overtime claims
- $500,000 Unpaid days of work to 4 oil rig workers
- $490,000 For sex and age discrimination of women
- $465,000 Sexual harassment at a gas station
- $460,000 Unpaid hours of work for security officers & PAGA Violations
- $450,000 Paystub violations
- $450,000 Settlement for 2 on-call workers
- $450,000 Being on controlled standby
- $430,000 Settlement in 2024 dollars for a Los Angeles warehouse worker forced to violate her medical restrictions imposed by pregnancy
- $400,000 Following arbitration win for meal & rest breaks for 3 employees
- $400,000 Off-the-clock work for 5 employees
- $400,000 Recovery following arbitration win for 4 employees who worked off the clock
- $365,000 Sexual harassment of a delivery driver
- $365,000 After defendant lost their appeal - pregnancy case - Jury Trial
- $365,000 Vasquez v. Del Rio Sanitarium Pregnancy Discrimination Case - Following Jury Trial & Appeal
- $360,000 For missed meal and rest breaks, and overtime for 3 employees, and PAGA penalties for less than 25
- $350,000 For prevailing wage and paystub itemizations
- $350,000 For controlled standby and overtime for one employee
- $350,000 For 2 employees in the vacation rental business who worked off-the-clock, on-call & PAGA
- $350,000 To 2 employees in vacation rental business working off-the-clock overtime
- $350,000 Nurse mis-classified as independent contractor who was on-call
- $350,000 Due to fixed bonus pay not figured into overtime for a directional driller
- $350,000 For directional driller whose fixed rate bonuses were not calculated into his overtime rate
- $325,000 Sexual Harassment on a studio lot by manager
- $315,000 Sexual harassment of a lesbian woman by straight man
- $315,000 Sexual harassment of a pizza delivery driver
- $307,345 For 2 hospital employees oncall
- $305,000 For 2 IT trouble shooters oncall at a major hospital
- $305,000 Wrongful termination of 2 sales people
- $302,000 Controlled standby pay for two telecommunication workers in a hospital
- $300,000 Verdict of punitive damages in wrongful termination case due to employee's refusal to work without rest breaks
- $300,000 Multiple Worker Claims for Unpaid Wages for Oil Gauge and Calibration Inspectors on Docked Coastal Vessels
- $300,000 Post trial verdict for wrongful termination settlement and minor rest break violations
- $275,000 Unpaid minimum wage, overtime double and double time due to on call work for two technicians at a radio/television station
- $270,000 Sexual harassment & employment termination
- $260,000 For controlled stand by pay
- $260,000 For sexual harassment in a supermarket
- $250,000 For 2 oil field service technicians not paid overtime
- $250,000 For whistle-blower about unpaid overtime
- $250,000 For radiology technician on-call and small PAGA group
- $250,000 Failure to accommodate physical therapy appointments following a stroke, pretextual job termination
- $250,000 Sexual harassment of union studio worker by supervisor
- $250,000 Sexual harassment of older straight woman by straight older woman in hospital
- $246,000 Breach of fiduciary duty arbitration award involving disability discrimination
- $235,000 Mechanic at car dealership not paid twice minimum wage, incentive pay not paid right
- $232,000 Male on male sexual harassment won at a binding arbitration
- $225,000 Sexual harassment by store customers
- $225,000 Sexual Harassment of a Waitress (No Termination Involved)
- $225,000 For two kitchen workers sexually harassed
- $206,151 Larson v. VXI Same Sex Sexual Harassment
- $205,000 Unpaid wages, overtime, labor code section 2699 penalties- arbitration award for multiple plaintiffs
- $205,000 For multiple plaintiffs
- $200,000 Acts of sexual harassment by CEO
- $200,000 For on-call work, retaliation, forced to quit security officer
- $200,000 For prevailing wage and FMLA violations
- $200,000 For a worker fired due to medical issues & complaints of discrimination
- $200,000 For PAGA violations and sexual harassment
- $200,000 For a sales woman in her 60s, age discrimination
- $200,000 Race Discrimination towards Latinos
- $195,000 For Whistle Blower
- $193,500 Sexual Harassment by a registered sex offender
- $193,250 Sexual harassment by a sex offender
- $190,000 Sexual Harassment in the medical coding industry
- $190,000 Sexual harassment without a job termination
- $185,857 Jewish lawyer discriminated against due to religion
- $185,000 For sexual harassment of a woman 35 years older than the harasser
- $182,500 Fired during cancer treatment
- $180,000 Controlled standby pay claims of oil field service employee
- $180,000 Cancer discrimination and termination due to recovery from cancer
- $180,000 Controlled standby pay
- $175,000 Sexual harassment of a part-time employee by manager, forced to quit
- $175,000 Failure to pay minimum wage
- $175,000 Wrongful Termination of Financial Whistleblower
- $175,000 PAGA settlement due to missed meal and rest breaks in a hotel’s kitchens
- $175,000 Unpaid overtime of 2 limo drivers of a small company
- $175,000 Sexual harassment lawsuit
- $175,000 PAGA settlement resort staff who worked off-the-clock
- $175,000 Minor issues of pregnancy discrimination in fast food restaurant, lack of rest breaks
- $174,250 Missed meal and rest breaks
- $170,000 Off the clock work by nonexempt administrator at non-profit
- $166,250 Racial harassment at a big box store
- $165,000 For a car dealership manager denied baby bonding and CFRA Leave
- $165,000 Wrongful termination and whistleblower
- $162,500 Failure to pay commissions, retaliation when went to Labor Board
- $162,000 Sexual harassment at a home owner’s Association
- $160,000 For 3 oil field employees denied meal breaks, worked off-the-clock
- $160,000 Sexual harassment by managers of car lot
- $160,000 Auto dealership sexual harassment by text message
- $155,000 Whistle blower at construction site
- $153,000 Camarillo woman demeaned due to her Christianity
- $150,000 Race harassment at an oil refinery
- $150,000 Sexual harassment to two kitchen workers at a resort
- $150,000 Settlement for failure to reinstate after maternity leave
- $150,000 Wrongful termination of C.N.A. in assisted living facility who blew whistle
- $150,000 Sexual harassment followed by pregnancy discrimination in the parts department of a car dealership
- $150,000 Mental disability & termination of CFO
- $150,000 Sexual harassment by a manager of an adult daycare program
- $150,000 Job Termination of salesperson with cancer
- $150,000 Sexual harassment by a coworker and forced to quit due to slow sexual harassment investigation
- $150,000 CNA complained about rats
- $150,000 Cancer discrimination & wrongful termination of waitress
- $150,000 Forced to quit due to sexual harassment
- $150,000 Disability discrimination & termination
- $150,000 Job not held open during cancer treatment
- $150,000 Sexual harassment of an eight-teen year old restaurant worker
- $150,000 Cancer discrimination & termination of waitress Wrongful Termination of Site Manager
- $150,000 Big box retail employee fired for reporting manager making him work off-the-clock, no meal breaks
- $150,000 Wrongful termination of social worker reporting patient abuse
- $145,000 Settlement for an office manager whose Northridge employer would not allow her to take leave from work due to pregnancy
- $140,000 Not Accommodated and Fired for Mental Disability Leave
- $140,000 Off-the-clock work, breach of contract to pay hourly wage to nurse
- $137,930 Robinson v. Mantra - Binding Arbitration Award in a Pregnancy Discriminations
- $137,500 Failure to reinstate after FMLA
- $135,000 Aerospace executive whistle blower
- $130,000 Employee fired for refusing to falsify records in lawsuit
- $127,500 Wrongfully terminated driver who complained his truck was unsafe
- $127,500 Illegally required medical examination adversely affecting a disabled employee
- $127,450 Improper inquiry about medical abilities
- $125,450 Retail sales manager terminated after complaining about national origin harassment by coworker
- $125,000 Non-payment of wages to CEO
- $125,000 Sexual harassment of a drug counselor
- $125,000 Minor sexual harassment
- $125,000 Pregnancy discrimination case & wrongful termination -
- $125,000 Breach of contract, unpaid wages in the web industry
- $125,000 Sexual harassment at a fast food restaurant
- $125,000 For employee who quit after being misclassified and not receiving overtime.
- $125,000 Wrongful termination
- $125,000 Wrongful termination & minor labor code violations
- $125,000 High tech employer stopped paying the agreed to sum
- $125,000 Age discrimination during layoff
- $125,000 Pregnancy discrimination & termination
- $120,000 Male on male sexual harassment Unpaid wages, overtime, labor code section 2699 penalties- arbitration award of over
- $120,000 For race discrimination
- $120,000 Unpaid wages for tow truck drivers
- $120,000 Racial Discrimination of a warehouse worker
- $120,000 Insurance professional terminated for taking California Family Care Leave (FMLA)
- $120,000 Sexually harassed maintenance supervisor by another male
- $117,702 Disability discrimination, FMLA, and termination of $10.00 an hour employee in binding arbitration
- $117,500 Pregnancy discrimination & termination ($24,000 loss of earnings)
- $115,616 Signal Hill Hindu made fun of due to his religion
- $115,000 Sexual harassment of car saleswoman & minor unpaid commissions
- $115,000 Pregnancy discrimination & termination of customer service employee
- $115,000 Sexual harassment of car saleswoman minor unpaid commissions
- $112,023 Wrongful termination of social worker during trial
- $110,000 (minor lost wages) Cancer discrimination & employment termination
- $109,500 Unpaid prevailing wages for 2 employees of a small company
- $107,500 Wrongfully terminated security manager who let his subordinates know they had rights to meal breaks
- $105,500 Sexual harassment of a lesbian aerospace worker by a man who wanted to turn her straight
- $105,000 Overtime due computer professional
- $105,000 Fired After Depression Leave
- $103,145 Refusal to accommodate pregnant warehouse worker
- $102,500 Family Care Leave Act violations & termination ($20,000 loss of earnings)
- $102,500 Sexual harassment of a waitress (no termination involved)
- $102,500 Sexual harassment of a janitor
- $101,500 Sexual harassment of a janitor
- $100,850 Sexual harassment by restaurant manager
- $100,000 Fired Due to Age of FMLA Leave
- $100,000 Wrongful termination of ambulance driver who blew the whistle
- $100,000 Termination of Mechanic’s Employment in Violation of California Family Rights Act (California FMLA)
No matching results found.
* Past results are not a guarantee or prediction of future case outcomes.
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About Firm Founder, Karl Gerber
Firm Founder, Karl Gerber, has been an employment wrongful termination attorney since 1993. He has represented a wide range of employees throughout California.
Mr. Gerber has won 51 of the binding arbitrations and jury trials he first chaired, and a number of his appeals are published. This deep trial experience is the foundation of the firm's strategic approach to litigation.
The employment attorneys employed by the Employment Lawyers Group have worked at the firm well in excess of five years, have also tried many different labor cases, and have all been extensively trained on employment wrongful termination by Karl Gerber.
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