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    How can a court order "restitution" of a penalty? It cannot.

    michael walsh

    One can certainly get restitution of ten minutes of pay for each paid break that was denied. Even if the hour of pay is wrongly found to be a penalty, and even if the legislature does not step in and correct the injnustice, the value of the labor during which a break was due and worked through is clearly not a penalty, and is clearly unfair competition, and is clearly subject to restitution. Thus, although the value of the restitution is only 10 to 30 minutes of pay per day (depending upon the number of breaks missed), employees can reach back four years to recover the value of the labor, or, depending upon how you frame it, the value of the pay due to them for the first ten, twenty or thirty minutes they spent off the clock, during which they should have been paid for a rest period.

    Typically, if an employee does not take a break or a meal then he is already being compensated for his time. (E.g., Breaks are paid by definition and the loss of a break results in no loss of any wage, only in employer liability for a penalty.)

    michael walsh

    If an employee is entitled to be at rest, and is paid the same for providing labor as he is for providing rest, the employer has received the value of ten minutes of labor at no cost if the worker is forced to work through his break. This is an unjust enrichment. Applying another theory, if the employee gets no breaks, then once he stops working, he should be paid for his first ten minutes (or twenty) during which he is not working. The refusal to pay for that 10-20 minutes of break taken after the employee stops working is a denial of a wage.

    The restitution theory does not lend itself well, however, to the denial of an unpaid meal period.

    The entitlement to pay for the value of a worker's labor existed long before the enactment of Labor Code 226.7, and we successfully argued for ten minutes of pay per day even when there was no statute, and hence no "penalty," even if you think (or, more likely, you are paid by the hour to claim) that the hour of pay under the statute is a penalty. I'd suggest that you identify yourself, commenter, but if my argument was that uninsightful, I'd remain anonymous, too.


    Hi Michael -
    I really appreciate your blog and find it helpful. I am in the midst of a couple of class actions and would be grateful if you could share an exemplar of your argument regarding the 10 minutes of restitution. I understand the argument, but it would probably take me awhile to "re-invent the wheel". Thanks for any help.

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