It might surprise many California public employers that there is no law that requires them to provide meal and rest breaks to most of their employees. Similarly, there is no law that requires California public employers to pay overtime to most of their employees for working over eight hours in a day or pay “double time” for working over 12 hours in a day.
What about the FLSA? Nope. With respect to overtime, the FLSA requires that an employee work over 40 hours in a seven-day work week before being paid overtime. The federal law is silent on daily overtime. Similarly, the FLSA does not mandate meal periods or daily overtime.
What about California law? Well, this is where it gets a bit interesting. For example, a California public employer or employee may have looked up Labor Code section 510, which states:
Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.
Upon reading this, one might be convinced that California public employers are required to pay daily overtime and/or double overtime.
In 2009, however, the California Court of Appeal held in Johnson v. Arvin-Edison Water Storage District, that “unless the Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.” Section 510 does not specifically reference public employers, and under the plain language of Johnson’s holding, it should not apply to them.
Still not convinced? Well, let’s look at the California Industrial Welfare Commission Wage Orders. For example, IWC Wage Order 4, which applies to employees in professional, technical, clerical, mechanical, and similar occupations, states, in Section 1, paragraph (B):
Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.
Notably missing from this are Sections 3, 11, and 12. Section 3 requires daily overtime. Section 11 requires meal periods. Section 12 requires rest periods. This Wage Order, and others like it, expressly exempt California public employers from state overtime provisions and meal and rest break requirements.
But before we finish, we have to note the exceptions.
Some agricultural and irrigation public employees may be covered by state IWC Wage Order 14, which regulates agricultural and irrigation employees. Commercial drivers for public entities are covered by portions of state IWC Wage Order 9, which regulates the transportation industry. In addition, Wage Order 15 generally applies to public entities that employ in-home services support workers.
Why do California public employers still provide meal breaks and daily overtime?
More likely than not, this is because public agencies do provide for meal periods and rest breaks in some agency rule or policy or in a collective bargaining agreement. This is where you will also likely find daily overtime provisions. This is important to know so that California public employers can properly enforce these requirements, either under the law or by contract.