Jernagin v. City of
Angeles
Filed 5/29/13 Jernagin v. City of Los Angeles CA2/1
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
RICHARD JERNAGIN,
Plaintiff
and Respondent,
v.
CITY OF LOS ANGELES,
Defendant and Appellant,
B241411
(Los Angeles
County
Super. Ct.
No. BC356014)
APPEAL from
a judgment of the Superior Court
of
County. Emilie H.
Elias, John Shepard Wiley, Jr., Judges.
Affirmed.
Liebert
Cassidy Whitmore, Brian P. Walter, Alex
Y. Wong; and Carmen A. Trutanich, Los Angeles City Attorney, for Defendant and
Appellant.
Law Offices
of Matthew L. Taylor, Matthew L. Taylor; Law Offices of Michael D. Myers and
Michael D. Myers for Plaintiff and Respondent.
_______________________________
>
In this
class action on behalf of sanitation truck drivers employed by the City of Los
Angeles, the trial court granted class certification and ruled in the
plaintiffs’ favor on the certified liability issue. Upon the parties’ stipulation the court then
severed one individual plaintiff from the class, heard that plaintiff’s damage
claim, and entered judgment for $8,304.08 against the City of Los Angeles for
its failure to provide that plaintiff with “off duty†meal breaks on 310
occasions. The claims of the remaining
class members were stayed pending the outcome of this appeal.
The City of
Los Angeles seeks reversal of the judgment, contending that the trial court
erred in imposing liability against it on two grounds: that as a charter city it is exempt from the
Labor Code and wage order provisions on which the liability determination
rests; and that in any event its rules and regulations do not render the meal
breaks of its sanitation truck drivers on-duty meal breaks, rather than
off-duty meal breaks, as the trial court ruled they do. We conclude that with respect to its
sanitation truck drivers, the City is not exempt from the state-law rules
relating to meal breaks; and that the constraints placed on the plaintiff
sanitation truck drivers during the meal breaks provided by the City’s rules
render them on-duty meal breaks, for which compensation is required.
We therefore affirm the judgment in favor of the individual plaintiff
and against the City of Los Angeles.
BACKGROUND
A class
action complaint filed in July 2006 alleged that the defendant City of Los
Angeles (the City) failed to provide meal breaks to sanitation truck drivers
employed by its Bureau of Sanitation/Recycling Collection Division of the
Department of Public Works, in violation of law. The plaintiff contended that he and the
putative class members routinely worked more than five hours per day without
receiving
a 30-minute, duty-free meal break, in violation of Labor
Code sections 226.7 and 512, and Industrial Welfare Commission (IWC) Wage Order
9-2001 (Cal. Code Regs., tit. 8, § 11070) (Wage Order 9).
other relief, including wages for one additional hour for each work day that a
meal break was not provided. The City
answered on January 31, 2007.
The City
moved for judgment on the pleadings, contending that its constitutional powers
as a charter city exempt it from sections 226.7 and 512, and from the
meal-break provisions of Wage Order 9.
Following extensive briefing, the trial court (Hon. Emilie H. Elias)
denied the motion on August 24, 2007. In
its written ruling the trial court found that Wage Order 9 does apply to the
City’s sanitation truck drivers, and that Wage Order 9 constitutes a valid
exercise of state police power to address the public hazard arising from fatigued
drivers of large vehicles in public areas in California, a matter of statewide
concern that overrides the constitutional right of charter cities to exercise
plenary authority over their employees’ compensation.
On November
16, 2007, this court summarily denied the City’s petition for writ relief from
that ruling.
The City
then renewed its motion for judgment
on the pleadings, contending that new case law precluded the application
of meal break requirements to charter
cities. The trial court denied the
motion on December 2, 2008.
On March
13, 2009, this court summarily denied the City’s petition for writ relief from
that ruling. The Supreme Court denied
review on May 13, 2009.
On March
29, 2011, Judge Elias entered an order granting class certification for a
plaintiffs’ class consisting of City employees working as sanitation drivers
from July 26, 2003 to and including the date of trial. The issue certified for trial was whether the
City’s policies regarding meal breaks restricted sanitation drivers so as to
render their meal breaks “on duty,†rather than “off duty†meal breaks,
requiring compensating payments under section 226.7.
Following
trial on that liability issue, on December 5, 2011, the trial court (Hon. John
Shepard Wiley, Jr.) ruled against the City, holding that the meal breaks
provided by the City must be classified as “on-duty†meal breaks rather than
“off-duty†meal breaks.
On the
trial court’s recommendation, the parties stipulated to sever the claims of
Richard Jernagin, an individual member of plaintiffs’ class, in order to enable
entry of a final appealable judgment.
(See See Code Civ. Proc., § 904.1.)
The stipulation included provisions staying the damage claims of other
class members until either further order or the completion of the City’s appeal
from a judgment favoring Mr. Jernagin, and waiving any prevailing party costs
and attorney fees relating to the severed case.
The parties
then stipulated to evidence of Mr. Jernagin’s damages. On April 30, 2012 the trial court entered
judgment in the amount of $8,304.08 in Mr. Jernagin’s favor individually and
against the City. The City filed this
timely appeal from the judgment on May 17, 2012.
DISCUSSION
“The decision as to what areas of governance
are municipal concerns and what are statewide concerns is ultimately a legal
one,†subject to independent review. (
Council of California v. City of Vista (2012) 54 Cal.4th 547, 558;
97 Cal.App.4th 335, 339.)
The City’s
appeal from the judgment raises two issues underlying the trial court’s
liability determination. First, do the
legislative and administrative provisions of sections 512 and 226.7, and Wage
Order 9, apply to the meal breaks provided by the City to its sanitation truck
drivers? On appeal, the City argues that
they do not. Second, if these provisions
do apply, do the meal breaks provided by the City to its sanitation-truck
drivers comply with them, by relieving the drivers of all duties and employer
control during a 30-minute meal break for each five-hour period worked? The trial court held that they do not. On appeal, the City argues that they do.
1. The Provisions Of Sections 512 &
226.7, And Of Wage Order 9, Govern The Meal Breaks The City Must Provide To Its
Sanitation Truck Drivers.
The City
contends, as the first step in its argument that it is exempt from compliance
with the Labor Code and wage order provisions governing employee meal breaks,
that meal breaks constitute a matter of employee compensation, which is, under
article XI, section 5, of the California Constitution, exclusively a “municipal
affair.â€
In
approaching this issue we bear in mind our Supreme Court’s admonitions in a similar
context: “‘Unlike the federal
Constitution, which is a grant of power to Congress, the California
Constitution is a limitation or restriction on the powers of the Legislature.
[Citations.] Two important consequences
flow from this fact. First, the entire
law-making authority of the state, except the people’s right of initiative and
referendum, is vested in the Legislature, and that body may exercise any and
all legislative powers which are not expressly or by necessary implication
denied to it by the Constitution. [Citations.]
In other words, “we do not look to the Constitution to determine whether
the legislature is authorized to do an act, but only to see if it is
prohibited.†[Citation.] [¶] Secondly, all intendments favor the
exercise of the Legislature’s plenary authority: “If there is any doubt as to the
Legislature’s power to act in any given case, the doubt should be resolved in
favor of the Legislature’s action. Such
restrictions and limitations [imposed by the Constitution] are to be construed
strictly, and are not to be extended to include matters not covered by the
language used.â€â€™ [Citations.] On
enforce the provisions of our Constitution and “may not lightly disregard or
blink at . . . a clear constitutional mandate.â€â€™ [Citation.]â€
(County of Riverside v. Superior
Court (2003) 30 Cal.4th 278, 284-285.)
The
home rule doctrine deprives the state of power to legislate with respect to the
City’s municipal affairs.
Article XI,
section 5, subdivision (a), of the California Constitution permits charter
cities to include “home rule†provisions in their charters, allowing them to
“make and enforce all ordinances and regulations in respect to municipal
affairs†without restriction by the general laws of the state. Los Angeles is a charter city whose charter
contains such a home rule provision. (
31 Cal.4th 1074, 1082; Los Angeles City Charter, art. I, § 101.)
Article XI,
section 5, subdivision (b)(4) of the Constitution grants to cities with
home-rule charter provisions the power to set the compensation of their own
employees (effectively defining employee compensation as a municipal
affair). With respect to municipal
affairs, city charters “shall supersede all laws inconsistent therewith.†(Cal. Const., art. XI, § 5, subd. (a).)
The
analytical framework for resolving whether a matter falls within the home rule
authority of a chartered city is set forth in California Fed. Savings & Loan Assn. v. City of Los Angeles (1991)
54 Cal.3d 1, 16-17, recently repeated in State
Building & Construction Trades of California v. City of Vista,
court must determine whether the city ordinance at issue regulates an activity
that can be characterized as a ‘municipal affair.’ [Citation.]
Second, the court ‘must satisfy itself that the case presents an actual
conflict between [local and state law].’
[Citation.] Third, the court must
decide whether the state law addresses a matter of ‘statewide concern.’
[Citation.] Finally, the court must
determine whether the law is ‘reasonably related to . . . resolution’ of that
concern [citation] and ‘narrowly tailored’ to avoid unnecessary interference in
local governance [citation]. ‘If . . .
the court is persuaded that the subject of the state statute is one of
statewide concern and that the statute is reasonably related to its resolution
[and not too broad in its sweep], then the conflicting charter city measure
ceases to be a “municipal affair†pro tanto and the Legislature is not
prohibited by article XI, section 5(a), from addressing the statewide dimension
by its own tailored enactments.’
[Citation].†(
The
determination whether a particular matter is one of statewide concern
sufficient to overcome its reservation to the City as a strictly municipal
affair “is a judicial function to be determined upon the facts and
circumstances surrounding a given case,†based on the legislative purpose and
the factors that influenced the Legislature to adopt the general law. (City
of Los Angeles v. State of California (1982) 138 Cal.App.3d 526, 532.)
Sections
512 and 226.7 and Wage Order 9 purport to govern meal breaks for the City’s
sanitation truck drivers.
Meal
periods “have long been viewed as part of the remedial worker protection
framework. [Citations.]†Murphy
v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105.) Section 512, effective January 1, 2000
(Stats. 1999, ch. 134, § 6), codified meal-break requirements for employees
working more than five hours in one day, requiring employers to provide
employees with meal breaks “of not less than 30 minutes†for workdays of more
than five hours, and to provide two 30-minute meal breaks for workdays of more
than 10 hours. (§ 512, subd. (a).) Section 226.7 allows the IWC to regulate meal
breaks. Subdivision (a) of that section
provides that “[n]o employer shall require any employee to work during any meal
or rest period mandated by an applicable order of the Industrial Welfare
Commission.†Subdivision (b) fixes the
compensation to be paid by an employer for its failure to provide a mandated
meal break. (Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1114.)
In 2003,
the Legislature added section 512.5, permitting the IWC to adopt a wage order
applying to public employee drivers.
IWC amended Wage Order 9 (which applies to the transportation industry) to make
its meal break provisions apply to “commercial drivers employed by government
entities.â€
In its current form, Wage Order 9 provides
(with some exceptions not relevant here) that a public-employee commercial
motor vehicle operator is entitled to a minimum 30-minute meal break after each
five hours worked, and that unless the employee is relieved of all duty during
the break, “the meal period shall be considered an ‘on duty’ meal period and
counted as time worked.†(Wage Order 9,
subd. 11(C).)
The
City’s authority over meal breaks afforded to its sanitation truck drivers is
not exclusively a municipal affair.
It is true
that employee meal breaks are for some purposes classified as a matter of
employee compensation. In
implied that meal breaks are a matter of employee compensation, by holding
that—for purposes of the statute of limitations—the payment provided by Section
226.7 for employees who have been deprived of required meal breaks “is a
premium wage intended to compensate employees . . . .†The case of In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 333, held that
an employer’s payment for work uniforms is a matter of employee compensation
that under article XI of the constitution is within the exclusive power of
cities and counties to regulate. More
recently, Curcini v. County of Alameda
(2008) 164 Cal.App.4th 629, and Dimon v.
County of Los Angeles, supra, 166
Cal.App.4th at page 1283, held that, as applied to county-employed prison
chaplains and probation officers, the meal-break provisions of Sections 512 and
226.7 “are matters of compensation within the county’s exclusive constitutional
purview.†(Curcini v. County of Alameda, supra,
164 Cal.App.4th at p. 645.)
name="_ftnref7" title="">
not dispute that meal breaks can be classified as matters of employee
compensation, nor that employee compensation is ordinarily a municipal affair,
free from state control.
name="_ftnref8" title="">
However,
these decisions do not establish that the City has exclusive authority, free
from state control, with respect to the meal breaks it affords to its
sanitation-truck drivers, or with respect to the compensation that it must pay
to those who have been deprived of required meal breaks. The decision in In re Work Uniform Cases held that the Labor Code provision sought
to be enforced in that case was not a worker safety statute affecting a
statewide interest in public safety.
(133 Cal.App.4th at p. 342.) And
the plaintiffs in Curcini v. County of
Alameda, supra, 164 Cal.App.4th
629, and Dimon v. County of Los Angeles,
supra, 166 Cal.App.4th 1276, were
prison chaplains and probation officers, whose meal and rest breaks would have
no apparent impact on matters of statewide public safety.
The Labor
Code and wage order provisions at issue in this case do deal with
compensation. But unlike in the cases
cited above, they do so in the context of ensuring that the City’s employees,
who drive large commercial trucks on its streets and highways, will be afforded
reasonable meal and rest breaks—not just for their own health and comfort, but
for the public safety as well. Meal
break requirements may be classified for some purposes as municipal affairs
over which the City exercises exclusive control; but that classification is not
controlling here.
The City
is not exempt from compliance with general laws governing matters of statewide
concern.
Matters of
local concern may be trumped by statewide interests, such as public health,
welfare, and safety, where competing regulations involve both. “There must
always be doubt whether a matter which is of concern to both
municipalities and the state is of sufficient statewide concern to justify a
new legislative intrusion into an area traditionally regarded as ‘strictly a
municipal affair.’†Any doubt, however,
“‘must be resolved in favor of the legislative authority of the state.’ [Citation.]â€
(Baggett v. Gates (1982) 32
Cal.3d 128, 140; City of Los Angeles v.
State of California, supra, 138
Cal.App.3d at p. 533.)
The trial
court found that the legislative amendment
permitting the application of Wage Order 9 to City sanitation truck drivers was
enacted in part to address concerns about having “fatigued drivers driving
large vehicles in public areas in California,†and for that reason the
provisions “can be seen as an exercise of state police power to address a
public hazard, an unambiguous matter of statewide concern.†On that basis the court concluded that the
City is not exempt from compliance with sections 512 and 266.7 and Wage Order
9, and denied the City’s motion for judgment on the pleadings.
The City
disputes this ruling, arguing that the state’s meal break regulations were
imposed to benefit the affected employees, rather than to address any statewide
safety concern. But the proposition
cannot stand that as a form of compensation, meal breaks are absolutely immune
from general law regulation despite any basis they may have in statewide
concerns. Logically, that proposition
would presume that any matter of local concern is wholly immune from state-law
regulation, without regard to concurrent statewide interests; that when a
matter is of both local and statewide concern, the local regulation of that
subject must prevail.
Settled law
dictates the opposite result. Local
concerns are trumped by statewide interests—such as public health, welfare, and
safety—when both are involved in competing laws and regulations. Where statewide concerns are involved,
charter cities are subject to some laws that concern municipal affairs, as the
City concedes.
title="">[9]
When state
law regulations affect both local and statewide concerns, the “general law
prevails over local enactments of a chartered city, even in regard to matters
which would otherwise be deemed strictly municipal affairs, where the subject
of the general law is of statewide concern.â€
(Professional Fire Fighters, Inc.
v. City of Los Angeles, supra, 60
Cal.2d at p. 292; Abbott v. City of Los
Angeles (1960) 53 Cal.2d 674, 681 [“When there is a doubt as to whether an attempted
regulation relates to a municipal or to a state matter, or if it be the mixed
concern of both, the doubt must be resolved in favor of the legislative
authority of the stateâ€]; Los Angeles
County Safety Police Assn. v. County of Los Angeles (1987) 192 Cal.App.3d
1378, 1386 [“The California Constitution’s home rule provisions do not place
police departments of charter cities beyond the reach of statutes addressing
matters of statewide concern, even where those statutes affect local
regulation.â€].) Nothing in
inconsistent with this conclusion; the duties of neither prison chaplains nor
probation officers require their safe operation of heavy equipment on the
state’s public highways during long workdays.
Notwithstanding
local concerns, the requirements for public-employee meal breaks is a matter of
statewide concern, justifying state regulation.
The case of
Industrial Welfare Com. v. Superior Court,
orders: “[I]n fulfilling its broad
statutory mandate, the IWC engages in a quasi-legislative endeavor, a task
which necessarily and properly requires the commission’s exercise of a
considerable degree of policy-making judgment and discretion. [Citations.]
Because of the quasi-legislative nature of the IWC’s authority, the
judiciary has recognized that its review of the commission’s wage orders is
properly circumscribed.†(
The trial
court found that one ground for permitting the IWC to apply its meal-break
regulations to government-employed commercial drivers “was to address the
public safety concern created by fatigued governmental drivers driving large
vehicles in public areas for multiple hours without breaks.†That finding is supported by both the record
and the law.
“‘“California
courts have long recognized [that] wage and hours laws ‘concern not only the
health and welfare of the workers themselves but also the public health and
general welfare.’â€â€™â€ (
Superior Court (2007) 42 Cal.4th 443, 456; Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277,
1294.) Although meal and rest period
requirements are part of “the remedial worker protection framework,†(
supra, 40 Cal.4th at p. 1105), the
health and safety of the public on the highways is also dependent upon the
health and safety of commercial drivers of large and heavy vehicles.
The IWC had
received testimony that “[s]ome commercial drivers operate vehicles 45 feet
long weighing 80,000 pounds,†which “creates a public safety hazard due to
driver fatigue†when meal breaks and rest breaks are not provided. As the trial court explained, “I find again
that there is an overriding state interest in having [the City’s sanitation
truck drivers] safe, actually on safe highways, on all the freeways, state
freeways,†adding that in Los Angeles a driver can’t get around “without ending
up on one of the state highways,†thereby implicating a state interest. The trial court concluded that “[i]t is not
the Court’s job to second-guess the IWC†about whether and how to apply its
public safety goals and the meal break requirements to governmental commercial
drivers.
title="">
As the
court held in City of Los Angeles v. the
State of California, supra, 138
Cal.App.3d 526, “[t]he resolution of the question whether a particular matter
is ‘strictly†a municipal affair or of statewide concern is a judicial function
to be determined upon the facts and circumstances surrounding a given case,â€
including the factors that influenced the state to legislate with respect to
the issue. (Id. at p. 532.) Because the
IWC’s application of the meal break provisions to governmental commercial
transport drivers “was partly to address public safety concerns arising from
fatigued drivers driving large vehicles in public areas in California,†the
trial court found that it was “an exercise of police power to address a public
hazard, an unambiguous matter of statewide concern.†Our review leads this court to the same
conclusion.
The
Trial Court Correctly Found That The City’s Rules Governing Employee Meal
Breaks Do Not Provide Its Sanitation Truck Drivers With Off-Duty Meal Breaks.
An
off-duty meal period is an uninterrupted 30-minute period during which the
employee is relieved of all duty or employer control.
Section
512, subdivision (a) and corresponding wage order provisions require employers
to provide a meal period that “relieves its employees of all duty, relinquishes
control over their activities and permits them a reasonable opportunity to take
an uninterrupted 30-minute break, and does not impede or discourage them from
doing so.†(Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1040, see pp. 1035, 1037.) Echoing this interpretation of section 512,
subdivision 11(C) of Wage Order 9 adds that “[u]nless the employee is relieved
of all duty during a 30 minute meal period, the meal period shall be considered
an ‘on duty’ meal period and counted as time worked. . . .†And subdivision 11(D) of Wage Order 9 mirrors
section 226.7’s requirement that for each required meal period the employer
fails to provide, it must pay the employee for one additional hour at the
employee’s normal rate of compensation.
of the City’s liability.
Following
the trial court’s certification with respect to the class-action claim that the
meal breaks provided by the City to its sanitation truck drivers constitute
“on-duty†rather than “off-duty†meal breaks, the court (Hon. John Shepard Wiley, Jr.) held a bench
trial of that issue upon stipulated facts, augmented by live testimony.
The parties
did not dispute that the City employs approximately 650 sanitation truck
drivers, nor that the “vast majority†of the drivers—perhaps as many as 95
percent—work in one-person crews. Since
1995, the sanitation department’s rules and regulations (which its employees
are required to follow, have provided for 30-minute lunch breaks “which will,
in general, be taken reasonably close to the middle of the shift. The members of a two person crew must decide
and agree upon one time and place for lunch. . . . Employees should not generally arrange to
meet at local establishments to avoid the appearance to the general public of
‘congregating.’â€
Beginning
with the rules and regulations issued in 2006,
the rule concerning working hours has also prohibited sleeping during
the work shift, “including the lunch break†and rest periods. On June 30, 2007, Personnel Policy #7 was
formally adopted, identifying “Failure to remain alert and responsive while on
duty, for example, sleeping on the job†as an offense justifying discipline. However, “a substantially identical personnel
policy†was in effect before that date.
A City
sanitation department supervisor of safety and training programs testified that
the rule against congregating with other drivers during lunch was established
due to the space needed to park the large sanitation trucks, two of which might
occupy approximately 80 or more feet of parking space. The trucks are not permitted on private
parking lots due to their weight, so “[a]s you put more vehicles in one area,
you’re taking up not only parking area but you’re also creating an unsafe
condition for others that may be coming in and out of shopping centers or
driveways.†Sanitation truck crews are
regularly instructed not to congregate in any one area, but typically no
precise number of trucks or crews is mentioned.
Discipline was not used to enforce the rule. When a supervisor observed a violation of the
noncongregation rule, he or she would speak individually with the involved
drivers the next day, addressing safety and other concerns and advising them
not to have multiple vehicles at one location.
Another
department supervisor testified that the rules do not specify a set number of
trucks that are prohibited from congregating, because the number “is not the
issue. It depends on the parking
availability and where this is occurring.â€
He had seen as many as four or five sanitation trucks parked at a
location for a lunch break, but was not aware that any drivers had ever been
disciplined for violating the noncongregation rule. He testified that the rule addressed not just
safety concerns, but also complaints from the general public and from
restaurant owners because of the space used by parked trucks.
Class
representative Gravina testified that the noncongregation rule was described by
the City as “Two is company. Three’s a
crowd,†indicating that no more than two vehicles should be parked
together. Although he had seen the rule
violated, however, he had never heard of anyone being disciplined for violating
the noncongregation rule.
name="_ftnref12" title="">[12]
The trial
court found that the City’s rules and regulations provide for 30-minute meal
breaks for sanitation truck drivers, during which “[t]heir time is mostly their
own,†in that they don’t have to eat, collect trash, stay with their trucks, or
monitor the radio. Under the City’s
rules, “[i]t is permissible to run personal errands, like going to the grocery
store or dry cleaners,†and “to drive to restaurants within a reasonable
distance from their route to pick up food or to eat at the table.†However (in addition to being required to
lock the truck and secure its hydraulic arm if they leave the truck),
sanitation truck drivers have “four main constraints†during a meal break:
“Don’t
sleep.
“Don’t
‘congregate.’
“Agree with
your other crew member [if any] when and where lunch will be.
“If you
eat, make it somewhere ‘on the route.’â€
The court found that the “no congregating†rule “forbids
more than four drivers eating together,†and more than two trucks from parking
at the same lunch place.
On these
facts the court held that the duties “to stay awake and to avoid congregatingâ€
prevent the drivers from being relieved of “‘all duty’†during their meal
breaks. “The drivers are thus subject to
the City’s control during their meal periods.â€
Although “[t]he City would win under a ‘relieved of MOST duty’
standard,†the court held, “that is not the law.†Under the “relieved of all duty†standard in
Wage Order 9, the meal breaks provided by the City to its sanitation-truck
drivers are “on-duty†and not “off-duty†meal breaks.
Under
the City’s rules the City’s sanitation-truck drivers are not relieved of all
duty during meal breaks.
Our task is
to determine whether the trial court correctly understood and interpreted the
evidence in concluding that the City’s rules prevent its sanitation-truck
drivers from being relieved of all duties, and make them “subject to the City’s
control during their meal periods.†This
is a question of law, subject to independent review. (Ghirardo
v. Antonioli (1994) 8 Cal.4th 791, 799; Madera
Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, 409, fn.
7.) In this connection “we should not
engage in needless policy determinations regarding wage orders the IWC
promulgates. ‘[R]eview of the [IWC]’s
wage orders is properly circumscribed. . . . “A reviewing court does not superimpose its
own policy judgment upon a quasi-legislative agency in the absence of an
arbitrary decision . . . .â€â€˜â€œ (Morillion v. Royal Packing Co.,
supra, 22 Cal.4th at p. 587; Industrial
Welfare Com. v. Superior Court, supra,
27 Cal.3d at p. 702.)
No case
fully resolves the question whether the rules against sleeping and congregating
(or either of them) constitute sufficient restrictions on the employee’s
freedom to render their meal breaks “on-duty†rather than “off duty,†as the
trial court found they do. However, the
Supreme Court recently clarified the law regarding meal periods in
supra, 53 Cal.4th 1004. There,
the Court concluded that the defining characteristic of an off-duty meal
period is its duty-free nature. (
employees do no work during meal breaks, in order for the meal break to be
classified as an off-duty break the “‘worker must be free to attend to any
personal business he or she may choose during the unpaid meal period.’†(Id.
at 1036.)
In this
case the trial court concluded that the City’s rules do not afford its
sanitation truck drivers uninterrupted 30-minute periods in which they are relieved
of any duty or employer control and are free to come and go as they please,
most notably by
limiting their right
to congregate with co-workers, and by denying them the right to sleep. The noncongregation rule, effectively
precluding more than two drivers from stopping together for a meal break
(because almost all trucks have one-person crews), deprives the drivers of
opportunities for meaningful interaction with co-workers, even when work has
stopped. So too, driver fatigue
inevitably results from driving a heavy truck for long periods in an urban
setting. Permitting a brief meal-break
nap might be expected to refresh and reinvigorate a tired driver, increasing
alertness and enhancing public safety.
It is
undoubtedly true that congregating more than two long and heavy sanitation
trucks at one location may justify concerns about both safety and public
relations, as the evidence indicates.
The City undoubtedly may (and does) require its drivers to park their
trucks only in safe and appropriate locations.
Similarly, there may be important risk factors and public-relations
concerns that led the City to impose the rule against sleeping during meal
breaks (suggested in a City trial brief, but not identified in the
evidence). But even if these rules arise
from legitimate concerns, neither of them is essential to the safe operation of
the City’s sanitation trucks.
Therefore once work has stopped for a required
meal break, unless the City relieves is drivers of all duties and does not
limit their ability to enjoy their time as they please, the meal break cannot
be designated “off-duty.†That is the
test: whether the control exercised by
the employer permitted the employees to use “‘the time effectively for [their]
own purposes.’†(Morillion v. Royal Packing Co., supra,
22 Cal.4th at p. 586; Bono Enterprises,
Inc. v. Bradshaw (1995) 32 Cal.App.4th 968.)
In
required to travel to and from the employer’s agricultural worksite on employer-provided
buses—and therefore could not decide when to leave, which route to take to
work, or which mode of transportation to use, and could not engage in
activities such as running errands, dropping children at school, or stopping
for breakfast. (Id. at pp. 586-587.)
Under the language of the applicable IWC wage order (the same as the
wage order in this case), the Supreme Court found that because the
employer-provided bus rides were mandatory, during that time the employees were
“subject to the control of an employer,†and therefore not off duty. The time spent on the employer-mandated bus
rides was compensable as “hours worked.â€
(Id. at pp. 578-579,
582-583.)
The court
in Bono Enterprises, Inc. v. Bradshaw,
11(C) of the applicable wage order to hold that an employee remains subject to
the employer’s control, and is not “relieved of all duty,†if he or she is
precluded from leaving the workplace during the meal period. “When an employer . . . thus prevents the
employee from using the time effectively for his or her own purposes, that
employee remains subject to the employer’s control,†and must be paid for that
time. (Id. at p. 975.)
The rules
governing meal breaks for City sanitation truck drivers seem well intended to
free the drivers to undertake almost any endeavor during meal breaks, as long
as their trucks are not driven far off their assigned routes and the equipment
is secured in the drivers’ absence. But
the City’s sanitation truck drivers nevertheless remain under the City’s clear
control during meal breaks: they may not
congregate with other drivers, and they may not sleep. The duty-free meal-break requirement of the
IWC wage orders, including Wage Order 9, must be liberally construed to
accomplish the objective of protecting the welfare of the affected
workers. (Bono, supra, 32
Cal.App.4th at p. 974.) During their
meal breaks the City’s sanitation truck drivers are not free in all respects to
use “‘the time effectively for [their] own purposes.’†(Morillion
v. Royal Packing Co., supra, 22
Cal.4th at p. 586.)
Applying
these principles, we conclude that the trial court correctly determined that
under the applicable rules, the City’s sanitation-truck drivers are not
relieved of all duties during their meal breaks, as required by section 512 and
Wage Order 9, subdivision 11(C). As the
trial court put it, “‘[r]elieved of ALL duty’ is different than ‘relieved of
MOST duty.’â€
DISPOSITION
The
judgment is affirmed. Pursuant to the
parties’ stipulation, neither party is entitled to recover its costs in this
Court.
NOT
TO BE PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J.
JOHNSON,
J.
this court differs from the trial court caption, which identifies Jose
Gravina—who is not a party to this appeal—as the plaintiff.
Code unless otherwise identified.
Section 512, and subdivision 11 of Wage Order 9, prescribe meal periods.
Section 226.7, subdivision (a),
prohibits an employer from requiring an employee “to work during any meal or
rest period mandated by an applicable order of the Industrial Welfare
Commission.†Employers who violate these
requirements must pay premium wages. (§
226.7, subd. (b); Wage Order 9, subd. 11(D).)
