This information is taken from a real case from Webb Law Group, APC. Names have been removed to protect our clients’ privacy and related parties.

Meal and Rest Breaks

The standard for meal and rest breaks comes from a case called Brinker, which essentially states that the employer’s obligation is to make the meal/rest breaks available to the employee and to relieve them of all duty so that they may take an uninterrupted break. “The employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations”.  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040-1041)

Based on the information that you have provided, it seems like [company] provided meal and rest breaks as required by law by making them available to [employee]. As you stated below, “if there was anyone who told [company] that he could not leave during lunch and had to perform work duties when clocked out, it would be himself”, which would mean that theoretically there should not be any liability for missed meal and rest breaks.

Off the Clock Work

In California, employees are required to be paid for all the time that they are suffered or permitted to work, and you cannot average their time over the course of a week to fulfill a minimum wage requirement. “Compliance with the minimum wage law is determined by analyzing the compensation paid for each hour worked; averaging hourly compensation is not permitted under California law.”  (Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 297, fn. 5)

Unfortunately, driving between sites which apparently happened 3-4 times, is a compensable work activity and [employee] can claim that there was a failure to pay minimum wage for his time spent driving. When there is a failure to pay minimum wage, there are also derivative claims that result from the failure to pay the employee. For example, for each hour that minimum wage is unpaid, there are liquidated damages equal to one hour of pay due to the employee. If an employee is not paid for their drive time, inevitably their wage statements are inaccurate because they do not list the correct number of hours worked. Additionally, because all wages have not been paid on time, there is a “waiting time penalty”. There can also be unpaid overtime if the unpaid hours would have resulted in the employee working more than 40 hours in a week or 8 hours in a day.

In terms of the 15 minutes before his shifts, we will need to obtain information from [employee] about why he is claiming this and who he is claiming instructed him to do this. It appears that [company]’s policy is correct in not allowing him to work off the clock, however a Court is going to look to what actually happened in practice, so if there was a supervisor telling [employee] that he needed to arrive early or something similar to that, we could potentially have an issue with him working off the clock before shifts. There are various factual and legal defenses that we could mount against this claim in order to reduce the amount the Plaintiff is seeking for unpaid wages.

This means that [company] likely does have some limited liability for off-the-clock work, failure to pay minimum wage, and the corresponding derivative claims.


Labor Code §2802 requires the employer to reimburse any expenses that the employee incurs carrying out work duties. This essentially requires the employer to provide work uniforms if a specific uniform is required. It also requires reimbursement for miles driven by the employee if they are in their own vehicle. The reimbursement would need to be in the form of mileage, as reimbursement for just gas would not compensate the employee for the decreased value of their vehicle as it would now have more miles on it.

An employer, however, can require the employee to place a uniform deposit if it is commensurate to the price of the uniform. The employer is typically required to “maintain” the uniform, but as you mention below, if a uniform does not require any special care (i.e. dry cleaning etc…) then the cost of normal washing and drying is the employee’s responsibility. This means that the uniform issues are likely defensible, but there is probably money owed for mileage ($.58 per mile is the current rate, $.54.5 was the 2018 rate).

The real draw of using Labor Code §2802 for the Plaintiff’s attorney here is that it entitles him to receive attorney’s fees for litigating on his client’s behalf, (PAGA, Failure to Pay Minimum Wage, and Inaccurate Wage Statements also provide the Plaintiff’s with Attorney’s Fees) because the actual damages suffered on this claim are likely very minimal.

Final Paycheck

It sounds like from what you are describing, [employee] was on some sort of leave for the investigation and never worked another shift after he had been paid his final check. Unfortunately in this situation, vacation time is technically earned by the employee when it is given to them, so that component would be a failure to pay wages when due. This would then trigger “waiting time penalties” as mentioned above. [Employee] is probably owed some waiting time penalties through either the vacation time or minimum wage driving issue. Waiting time penalties are equal to one (1) day of pay for every day that the employee waits to be paid, but they are capped at thirty (30) days of pay for the employee.

Overall Assessment

Based on the information that you have provided us with, it would appear that there are a few minor issues that occurred during [employee]’s employment with [company], that would entitle him to a recovery. However, it’s important to note that because there are only a few small issues and [employee] was not a highly compensated employee, so the amount he is likely due on these alleged violations is probably minimal.

There are three (3) issues though that make this situation more complex:

  1. PAGA/Class nature of the claims
  2. Attorney’s Fees for the Violations
  3. Personal Liability for the *** family

Because the Plaintiff has asserted these issues on a class-wide basis, they’re trying to multiply the small amount that could be owed to [employee] by the number of other employees which could result in much greater liability. However, with regard to the class claims they are going to need to provide evidence that this was common, which may be difficult. The biggest piece of leverage the Plaintiff’s attorney has is that if they are successful in the lawsuit, that attorney’s fees will be owed from Defendants to his firm, which can drive up the cost significantly.

It is for this reason that we will want to push for early settlement discussions before the Plaintiff’s fee amounts get out of hand. Lastly, because Labor Code §558.1 provides a manner for Plaintiff to get individual liability from ****** and *****, even with [company] out of business, it is important that resolve the matter to avoid personal liability. There could also be successor liability issues with [company], considering that both companies are owned by the same entitiy.

Are You In Need Of Legal Advice?

If you’re a current or former employee in California and you feel you may have suffered financial losses at the hands of your employer, contact the professional team of lawyers at Webb Law Group, APC. Our team of attorneys can answer your questions about employment law and let you know if you may have a case against your employer or another party acting on their behalf.

If you feel you may need legal advice about an employment claim against your business brought by one of your employees, the team at Webb Law Group is here to answer any questions you might have. Webb Law Group, APC is a reputable business and employment litigation firm with experience in matters involving California business and employment law.

Having a reputable attorney by your side for matters of this nature will offer you the best possible chance of navigating or avoiding lawsuits all together. If you feel that you need legal representation, we are happy to review your legal needs and provide consultation and support where necessary. For questions, or to schedule a consultation, contact Webb Law Group today at 559-431-4888 (Fresno) or 619-399-7700 (San Diego).