Safety for Employees in the Workplace

An employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not an actual law was being violated.  Labor Code § 6310; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300; Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 87; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109.  Thus, it is immaterial if the practice was actually unsafe or whether there was an OSHA standard that was actually being violated.  The employee need only have complained in good faith about the working conditions or practices.

The safety of employees in the workplace has long been a matter of prime legislative concern.  Labor Code § 6400 provides: “Every employer shall furnish employment and a place of employment which are safe and healthful for the employees therein.”  Section 6401 provides: “Every employer … shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful.  Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” Section 6402 provides: “No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.” Section 6403 provides in part: “No employer shall fail or neglect: … (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.” Hentzel, supra, 138 Cal.App.3d at 297-298.

Labor Code § 6311 protects an employee who refuses to perform work in the performance of which the Labor Code, including Labor Code §§ 6400-6403, will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees.  Labor Code § 6311 also protects an employee who refuses to perform work in the performance of which any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees.

Furthermore, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 recognizes a common law claim for wrongful termination in violation of public policy.  Labor Code § 1102.5 is essentially a codification of that claim.  Section 1102.5 prohibits an employer from retaliating against an employee for “refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”  

Labor Code § 6311 provides protection for workers who refuse to perform work, the performance of which violates the Labor Code and/or federal or state safety standards, where the violation would create a real and apparent hazard.

Labor Code §§ 226.7 and 512 in conjunction with Industrial Welfare Commission (“IWC”) Wage Order No. 5 require Defendants to authorize and permit their employees to take meal and rest periods.  California law requires employers to provide their employees with an off-duty meal period of at least 30 minutes before the end of their fifth hour of work. An employer must provide a second off duty meal period for shifts lasting more than ten hours.

 “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.”  Brinker Rest. Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, 1035. An employer cannot “impede or discourage [employees] from [taking meal periods].”  Id. at 1040.  First meal periods must be given before the employee’s sixth hour of work.  Id. at 1041.  Second meal periods must be given before the employee’s eleventh hour of work.  Id. at 1042.

Section 226.7 and IWC Wage Order No. 5 also require employers to authorize and permit employees to take 10-minute rest period for each four hours of work, or major fraction thereof, and to pay employees their full wages during their rest periods for any shift longer than three and one-half hours.  A “major fraction of four hours” means greater than two hours.  Brinker, supra, 53 Cal.4th at 1029.  Unless the employee is relieved of all duty during the 30-minute meal period and 10-minute rest period, the employee is considered “on duty” and the meal or rest period is counted as time worked.

When an employer fails to provide a meal or rest period in accordance with the applicable wage orders, the employer must pay the employee one additional hour of pay, a “premium wage”, at the employee’s regular rate of pay for each workday that a required meal period is not provided, and one additional hour of pay for each work day that the requisite number of rest periods are not provided.  Labor Code § 226.7.  Premium wages for missed meal and rest periods are subject to a four-year statute of limitations when paired with an unfair business practices claim.  Murphy v. Kenneth Cole (2007) 40 Cal.4th 1094, 1114 (hour of pay for missed meal and rest periods is premium wage, subject to same statute of limitations as action for unpaid wages); Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191 (the Unfair Competition Law which carries four-year statute of limitations, provides remedy for failure to pay wages).

Meal and rest period violations give rise to various statutory and civil penalties.  Labor Code § 226 provides for a statutory penalty to employers who knowingly and intentionally fail to report wages earned on their employees’ pay stubs.  Since premium wages for missed meal and rest periods are wages under Murphy, an employer’s failure to report missed meal and rest period premium wages on its employees’ pay stubs gives rise to section 226 inaccurate wage statement penalties.

Labor Code §§ 201 and 203 provide for a statutory penalty to employers who wilfully fail to pay to their employees all wages earned immediately upon termination. An employer’s failure to pay premium wages for missed meal and rest periods to terminated employees gives rise to section 203 waiting time penalties.

Various civil penalties are recoverable through the Labor Code Private Attorneys General Act (Lab. Code § 2698 et seq.) (“PAGA”).  Labor Code § 2699 provides for a penalty for a violation of any Labor Code provision, unless another penalty is already provided.  Labor Code § 210 provides for a penalty for non-payment of wages.  Labor Code § 558 provides for a penalty for any violation of the IWC Wage Order.  Finally, Labor Code § 226.3 provides for a civil penalty for wage statement violations.  PAGA also permits an employee to bring a representative action on behalf of other similarly aggrieved employees.  The statute of limitations on PAGA penalties is one year.