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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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is it true that public employees are not subject to the Ca

Resolved Question:

is it true that public employees are not subject to the Ca State DOL overtime and meals breaks (section 512) ?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question.

It is true that the laws governing overtime for public employees differ in some respects from the laws governing overtime in the private sector. There are a number of exceptions, and it can get complex, so I think I could provide you with a much more specific and detaield answer if you let me know what specific kind of government positions are you are concerned about.

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

Hello-


We have a junior administrative staff member (non-public safety, non-union) who's work schedule is 6:30 to 4:30, however she doesn't take her lunch break until from 3:00 to 4:00. On Friday's she sometimes pushes her lunch break to 3:30 and then doesn't return for the day, since City Hall closes at 4:30 on Fridays. My concern is that according to Ca DOL, she can't work more than 5 hours without a 30 minute meal break...and so therefore, could ask the City to pay her overtime. I have been told that, as a Municipality, we are not bound by the DOL definition of "meal breaks", so she would not be able to claim overtime. Just looking for clarification/interpretation. If you could please provide the statute that applies, that would be great.

Expert:  Patrick, Esq. replied 1 year ago.

Beth,

Thank you so much for clarifying your question.

Generally speaking, the provisions of California's Labor Code do not apply to public employees. Rejecting the argument that Labor Code section 512 (the meal period requirement) applies to public employees, the court stated in Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th:

Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector. Since section . . . 512 do[es] not expressly apply to public entities, [it is] not applicable here. Further, applying section . . . 512 to the District would infringe on its sovereign power to regulate its workforce.”

See here for an even more recent judicial opinion that discusses why California's meal period law, as well as other provisions of the California Labor Code, do not apply to public employees: http://caselaw.findlaw.com/ca-court-of-appeal/1543197.html

You should note that while the protections of California's Labor Code do not apply to public employees, the protections afforded by the Fair Labor Standards Act, which is FEDERAL law, do apply.

While the FLSA contains no requirement to provide meal periods, it does permit public and private employees to bring claims on the basis of:

- Failure to pay overtime for all hours worked over 40 in a week.
- Failure to pay for all hours actually worked, including time spent working during unpaid lunch breaks, at home, or "off-the-clock" outside of regular shift times.
- Failure to timely pay the full amount of all wages earned on each pay period.

So to summarize, California's Labor Code provision entitling employees to meal periods does not apply to public employees, nor does any other portion of the California Labor Code. However, the Fair Labor Standards Act, a federal law, does apply to public employees, but the FLSA does not contain a meal period requirement. Thus, public employees cannot sue for failure to take a timely lunch break.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.

Patrick, Esq., Lawyer
Satisfied Customers: 6757
Experience: Significant experience in all areas of employment law.
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