Kaanaana v. Barrett Business Services, Inc. ( 2018 )

Filed 11/30/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DAVID KAANAANA et al., B276420, B279838
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC496090)
v.
BARRETT BUSINESS
SERVICES, INC., et al,
Defendants and Respondents.
APPEALS from a judgment and a postjudgment order of
the Superior Court of Los Angeles County. John Shepard Wiley,
Jr., Judge. Reversed in part, vacated in part and remanded with
directions.
Hayes Pawlenko, Matthew B. Hayes and Kye D. Pawlenko
for Plaintiffs and Appellants.
Hinshaw & Culbertson, Frederick J. Ufkes and Filomena
E. Meyer for Defendants and Respondents.
__________________________
SUMMARY
These are appeals from a judgment and a postjudgment
attorney fee order in a class action alleging Labor Code
violations. The case presents two principal issues. The first is
whether plaintiffs should have been paid the prevailing wage
applicable to workers employed on public works. The second is
the applicable remedy when an employer violates statutory and
regulatory provisions requiring employers to provide workers
with a duty-free 30-minute meal period, by shortening the meal
period by three to five minutes. On the second issue, there is no
dispute that plaintiffs are entitled to the statutory remedy under
Labor Code section 226.7 – an additional hour of pay at their
regular rate.1 But plaintiffs contend they are also entitled to
payment of the minimum wage for the entire 30-minute meal
period, while defendants contend they are entitled to nothing
more than the section 226.7 remedy.
The trial court found (1) the prevailing wage law did not
apply to plaintiffs; and (2) the section 226.7 remedy was the
exclusive remedy for the shortened meal period. We disagree
with both conclusions and hold:
First, the prevailing wage law applies; under well-
established principles of statutory interpretation, plaintiffs were
engaged in “public work” within the meaning of the Labor Code.
The amount of back pay to which plaintiffs are entitled for the
prevailing wage law violation, and whether they are entitled to
additional damages arising from the breach, are matters left to
the trial court in the first instance on remand.
1 Further statutory references are to the Labor Code unless
otherwise specified.
2
Second, the remedy for defendants’ improper shortening of
plaintiffs’ meal periods consists of (1) one additional hour of pay
for every shortened meal period (so-called “premium pay”), as
provided under section 226.7, and also (2) payment of wages for
actual time worked during the shortened meal period. Plaintiffs
are not entitled to be compensated for that part of the meal
period time during which they were free from employer control.
Because plaintiffs were entitled to payment of minimum
wages for actual time they were required to work during their
meal periods, defendants may be subject to the “waiting time
penalties” that apply when an employer willfully fails to pay any
wages of an employee who is discharged or quits (§ 203,
subd. (a)). In addition, defendants are subject to civil penalties
under section 1197.1 for payment of wages less than the legal
minimum.
Finally, because the case must be remanded to recalculate
plaintiffs’ recovery, we will not consider plaintiffs’ claims of error
in the attorney fee award, as that award is vacated to permit the
trial court to reconsider attorney fees following remand.
FACTS AND PROCEDURAL BACKGROUND
Plaintiffs sued defendant Barrett Business Services, Inc., a
company providing staffing and management services.
Defendant provided employees for two publicly owned and
operated recycling facilities under contracts with Los Angeles
County Sanitation Districts. The class consisted of “belt sorters”
employed by defendant at those facilities between April 15, 2011,
and September 30, 2013. Plaintiffs alleged failure to pay
minimum wages, overtime, and all wages owing at termination
(all based at least in part on alleged noncompliance with the
prevailing wage law); failure to provide meal periods; unfair
3
competition; and civil penalties under sections 558, 1197.1 and
2698 (PAGA, the Private Attorneys General Act of 2004).2
Defendant brought a motion to strike the prevailing wage
claims, contending it was not required to pay the prevailing wage
as a matter of law. The trial court granted the motion in January
2016, concluding the work plaintiffs performed sorting
recyclables did not come within the definition of “public works”
under the prevailing wage law.
Thereafter, the parties stipulated to certain facts, and to
the admissibility and authenticity of certain evidence, for
purposes of trial on plaintiffs’ other claims. Central to these
claims was defendant’s policy of requiring belt sorters to return
to their stations at the conveyor belt before the end of their 30-
minute meal break. The stipulated facts included, in addition to
points already mentioned, the following.
The class members are all former employees of defendant.
The belt sorters stood at sorting stations along a conveyor belt,
removing recyclable materials from the conveyor belt and placing
them in receptacles at their sorting stations.
The lead belt sorters would turn the belt off for meal
breaks, and the belt sorters were required to clock out for meal
breaks, which they all took together. The lead belt sorter was
responsible for rounding up the belt sorters to clock back in after
2 Plaintiffs also alleged a representative claim under PAGA
for civil penalties against Michael Alvarez, defendant’s onsite
manager. The trial court held Mr. Alvarez jointly and severally
liable for the penalties awarded against defendant. We use the
singular “defendant” throughout for convenience.
4
meal breaks. Plaintiffs were paid a base hourly rate between
$8.25 and $10.75 during the class period.
The parties further stipulated that deposition testimony
could be substituted for live testimony for any witness, and the
deposition transcripts were deemed authentic. Only one witness
presented live testimony at the trial: plaintiffs’ expert witness on
damages, who was cross-examined by defendant. The parties
filed pretrial and posttrial briefs, and the court heard oral
arguments after the posttrial briefing.
Plaintiffs asserted two theories of recovery on the wage and
hour violations, both based on the meal period defendant
provided. The first was that defendant failed to provide at least
30 minutes of duty-free time during meal periods, requiring
plaintiffs to return to the conveyor belt (which was turned off for
just 30 minutes during meal periods) three to five minutes before
it restarted. This made defendant liable under section 226.7 for
meal period premiums (one additional hour of pay) for each
workday that a full 30-minute meal period was not provided. The
amount claimed was $227,190.73.
Plaintiffs’ second theory of recovery was that, by not
counting the improperly shortened meal periods as “time
worked,” defendant did not pay plaintiffs “the legal minimum
wage” under section 1194.3 That is, the “truncated meal periods
3 Section 1194, subdivision (a) provides: “Notwithstanding
any agreement to work for a lesser wage, any employee receiving
less than the legal minimum wage or the legal overtime
compensation applicable to the employee is entitled to recover in
a civil action the unpaid balance of the full amount of this
minimum wage or overtime compensation, including interest
thereon, reasonable attorney’s fees, and costs of suit.”
5
should have been considered an ‘on-duty meal period,’ . . . and the
belt sorters should have been paid at least the minimum wage for
this time.” Plaintiffs asserted this theory of recovery was
“separate and distinct from the right to recover a meal period
premium” under section 226.7. According to plaintiffs, each class
member could recover 30 minutes of pay at the minimum wage
for each shortened meal period, plus interest, as well as
liquidated damages in the same amount under section 1194.2.4
The amount claimed was $216,486.92.
In addition, plaintiffs contended they were entitled to
“waiting time penalties” that apply when an employer willfully
fails to pay “any wages of an employee who is discharged or who
quits.” (§ 203, subd. (a).)5 (This claim was based both on failure
to pay the meal period premium pay and on failure to pay the
minimum wage for the meal periods that were improperly
shortened.) The amount claimed was $377,599.20.
4 Section 1194.2, subdivision (a) provides: “In any action
under Section . . . 1194, or 1197.1 to recover wages because of the
payment of a wage less than the minimum wage fixed by an order
of the [Industrial Welfare Commission] or by statute, an
employee shall be entitled to recover liquidated damages in an
amount equal to the wages unlawfully unpaid and interest
thereon.”
5 Under section 203, subdivision (a), “[i]f an employer
willfully fails to pay, without abatement or reduction, . . . any
wages of an employee who is discharged or who quits, the wages
of the employee shall continue as a penalty from the due date
thereof at the same rate until paid or until an action therefor is
commenced; but the wages shall not continue for more than 30
days.”
6
Finally, plaintiffs sought civil penalties under PAGA, which
allows a representative action to recover civil penalties for
violations of the Labor Code. (§ 2699.) Plaintiffs sought these
penalties under section 558 (for meal period violations)6 and
section 1197.1 (for minimum wage violations).7 The amount
claimed was $1,390,800.
6 Section 558 states that “[a]ny employer or other person
acting on behalf of an employer who violates, or causes to be
violated, a section of this chapter or any provision regulating
hours and days of work in any order of the Industrial Welfare
Commission shall be subject to a civil penalty . . . .” (Id.,
subd. (a).) “[T]his chapter” includes section 512, subdivision (a),
which (as relevant here) requires “a meal period of not less than
30 minutes.” The penalties to which the employer or other
person “shall be subject” are, for “any initial violation,” $50 “for
each underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to
recover underpaid wages,” and, “[f]or each subsequent violation,”
$100 “for each underpaid employee for each pay period for which
the employee was underpaid in addition to an amount sufficient
to recover underpaid wages.” (Id., subd. (a)(1)&(2).) These
penalties are “in addition to any other civil or criminal penalty
provided by law.” (Id., subd. (d).)
7 Section 1197.1 states: “Any employer or other person
acting either individually or as an officer, agent, or employee of
another person, who pays or causes to be paid to any employee a
wage less than the minimum fixed by an applicable state or local
law, or by an order of the [Industrial Welfare Commission] shall
be subject to a civil penalty, restitution of wages, liquidated
damages payable to the employee, and any applicable penalties
imposed pursuant to Section 203 . . . .” (Id., subd. (a).) The
penalties specified are: “For any initial violation that is
intentionally committed,” $100 “for each underpaid employee for
7
Defendant contended that even if the court found plaintiffs
were not provided a full 30-minute meal period, “the imposition
on their time” was de minimis and therefore noncompensable. If
the court were to find a remedy was justified, defendant argued,
the “sole and exclusive” remedy was the additional hour of pay
under section 226.7, and “no other remedies or penalties are
legally or factually appropriate.”
The trial court’s verdict was as follows:
The evidence established that employees lost three to five
minutes of a 30-minute break. The court awarded $227,190.73
“for the 22,220 instances in which the unrounded time records
reflect breaks of less than 30 minutes.”
“[F]or the employees who lost three to five minutes of a 30
minute break, they are not entitled to recover minimum wages
for all or any portion of the meal period. Their exclusive remedy
is a meal period premium under Labor Code section 226.7.”
No waiting time penalties applied, because no minimum
wages were owed for the shortened meal periods “and the meal
each pay period for which the employee is underpaid.” (Id.,
subd. (a)(1).) “For each subsequent violation for the same specific
offense,” the penalty is $250 “for each underpaid employee for
each pay period for which the employee is underpaid regardless
of whether the initial violation is intentionally committed.” (Id.,
subd. (a)(2).) In both cases, these amounts are “in addition to an
amount sufficient to recover underpaid wages, liquidated
damages pursuant to Section 1194.2, and any applicable
penalties imposed pursuant to Section 203.” (Id.,
subd. (a)(1)&(2).) The civil penalties “are in addition to any other
penalty provided by law.” (Id., subd. (i).)
8
period premiums that are owing for the shortened meal periods
are not a wage that could trigger waiting time penalties.”8
The court awarded the class $53,293.50 in civil penalties
under PAGA. Plaintiffs sought civil penalties under section 558
for noncompliant meal periods totaling $409,950, but the court
exercised its discretion to reduce the penalties to 13 percent of
the full amount. (On average, plaintiffs were deprived of
13 percent of the 30-minute meal period.) The court found the
full penalty would be “unjust, arbitrary and oppressive, or
confiscatory” under section 2699, subdivision (e)(2). No civil
penalties were owing under section 1197.1 for unpaid minimum
wages.
Plaintiffs filed a timely notice of appeal.
Plaintiffs then sought attorney fees under PAGA and Code
of Civil Procedure section 1021.5 of $1,095,140. The trial court
awarded fees of $109,514, and plaintiffs appealed.9
We ordered the two appeals consolidated for purposes of
oral argument and decision.10
8 The judgment also stated that plaintiffs’ cause of action for
unfair business practices was “entirely derivative” of the
minimum wage and meal period claims, and referred to the
court’s rulings on those claims.
9 On January 12, 2018, defendant filed a motion to augment
the record in the attorney fee appeal, to include the opposition
defendant filed in the trial court to plaintiffs’ attorney fee motion.
Augmentation is appropriate, but unnecessary in light of our
remand to the trial court.
10 As of the time the case was argued to this court, we had
also consolidated a related case, Canterberry v. Geneva Staffing,
Inc., B270614. After oral argument, the parties settled the
9
DISCUSSION
1. The prevailing wage claim
a. Overview of prevailing wage law
Plaintiffs argue that performing recycling sorting work
pursuant to defendant’s contract with County Sanitation
Districts constitutes “public work,” which entitles them to
payment of a prevailing wage. The trial court concluded the work
was not “public work,” because it was not in the nature of
construction work. We disagree with this narrow construction of
“public work.”
The prevailing wage law provides that, “[e]xcept for public
works projects of one thousand dollars ($1,000) or less, not less
than the general prevailing rate of per diem wages for work of a
similar character in the locality in which the public work is
performed, and not less than the general prevailing rate of per
diem wages for holiday and overtime work fixed as provided in
this chapter, shall be paid to all workers employed on public
works.” (§ 1771.) The section “is applicable only to work
performed under contract, and is not applicable to work carried
out by a public agency with its own forces.” (Ibid.)
The sole prevailing wage law issue presented by these
appeals is whether plaintiffs’ work, consisting of the belt sorting
of recyclables at recycling facilities owned by Los Angeles County
Sanitation Districts, constitutes “public work.” This is a question
of law subject to our independent judgment. (City of Long Beach
v. Department of Industrial Relations (2004) 34 Cal. 4th 942, 949.)
A definition of “public works” is provided by section 1720.
Subdivision (a) states that “ ’public works’ means:” and then
Canterberry litigation. Accordingly, we address only the
arguments raised in the Kaanaana appeals.
10
itemizes eight different activities that constitute public works.
While some of these activities are quite specific, such as “[t]he
laying of carpet in a public building done under contract and paid
for in whole or in part out of public funds” (§ 1720, subd. (a)(5)),
others are more general. We are concerned with the first two
general such subdivisions, (a)(1) and (a)(2).
Section 1720, subdivision (a)(1) defines as public works,
“Construction, alteration, demolition, installation, or repair work
done under contract and paid for in whole or in part out of public
funds. . . .” There is no dispute that the recyclable sorting work
at issue in this case does not fit within the subdivision (a)(1)
definition.
Section 1720, subdivision (a)(2) also defines as public
works, “Work done for irrigation, utility, reclamation, and
improvement districts, and other districts of this type. ‘Public
work’ does not include the operation of the irrigation or drainage
system of any irrigation or reclamation district, except as used in
Section 1778 relating to retaining wages.” As the recyclable
sorting work here was, in fact, done for a county sanitation
district, it appears that the work at issue falls within the plain
language of the first sentence of subdivision (a)(2), and defendant
does not seriously contend otherwise.11 Instead, defendant
argues that subdivision (a)(2) cannot be read in isolation, but
11 As we will discuss later, defendant briefly suggests the
“operation” exception of the second sentence of subdivision (a)(2)
applies. The defendant in the now-dismissed Canterberry appeal
had argued that a county sanitation district is not an “other
district[] of this type,” within the meaning of section 1720,
subdivision (a)(2), but the defendant in the remaining Kaanaana
appeals does not pursue this argument.
11
instead must be read to be limited to construction work, and
other work of the types expressly identified in subdivision (a)(1).
b. Analysis
i. Introduction
Preliminarily, we note that the structure of section 1720
does not support the interpretation offered by defendant.
Subdivision (a) of the section has eight separate subdivisions,
several of which are not, in any way, construction work.12
12 Section 1720, subdivision (a) provides, in pertinent part:
“(a) As used in this chapter, ‘public works’ means:
“(1) Construction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of
public funds, except work done directly by any public utility
company pursuant to order of the Public Utilities Commission or
other public authority. For purposes of this paragraph,
‘construction’ includes work performed during the design and
preconstruction phases of construction, including, but not limited
to, inspection and land surveying work, and work performed
during the postconstruction phases of construction, including, but
not limited to, all cleanup work at the jobsite. For purposes of
this paragraph, ‘installation’ includes, but is not limited to, the
assembly and disassembly of freestanding and affixed modular
office systems.
“(2) Work done for irrigation, utility, reclamation, and
improvement districts, and other districts of this type. ‘Public
work’ does not include the operation of the irrigation or drainage
system of any irrigation or reclamation district, except as used in
Section 1778 relating to retaining wages.
“(3) Street, sewer, or other improvement work done under the
direction and supervision or by the authority of any officer or
public body of the state, or of any political subdivision or district
thereof, whether the political subdivision or district operates
under a freeholder’s charter or not.
12
Defendant would have us hold that subdivision (a)(1) is a general
provision defining “public works” as construction work; (a)(2) is
merely a specific subset of (a)(1); but some of the other
subdivisions (such as (a)(4), governing carpet laying under a
lease-maintenance contract) have independent effect. This would
be a persuasive argument if subdivision (a)(2) were itself a
subdivision of subdivision (a)(1) (i.e., were it numbered (a)(1)(A)).
But subdivision (a)(2) is itemized as one of eight equal
subdivisions (of subdivision (a)) which together constitute the
definition of “public works,” and must be given meaning.
(Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal. 4th
257, 274 [where there are several statutory provisions, courts
should, if possible, adopt a construction that will give effect to
them all].)
Defendant’s argument that subdivision (a)(2) is limited by
subdivision (a)(1) has some support, most notably in a 2005
administrative opinion by the Department of Industrial Relations
which we discuss in part 4 below. But, upon consideration of the
statutory language, the legislative history, multiple opinions of
“(4) The laying of carpet done under a building lease-
maintenance contract and paid for out of public funds.
“(5) The laying of carpet in a public building done under contract
and paid for in whole or in part out of public funds.
“(6) Public transportation demonstration projects authorized
pursuant to Section 143 of the Streets and Highways Code.
“(7)(A) Infrastructure project grants from the California
Advanced Services Fund pursuant to Section 281 of the Public
Utilities Code.
“(8) Tree removal work done in the execution of a project under
paragraph (1).”
13
the Department of Industrial Relations, and case law, we
conclude plaintiffs have the better argument, and hold that
subdivision (a)(2) applies even when the work does not meet the
descriptors in subdivision (a)(1).
ii. The statutory language
Our focus begins with the definition of “public works” found
in section 1720. Significant to this appeal, and overlooked by
both parties, is that the section 1720 definitional section is not
exclusive to the prevailing wage law. The definition begins, “As
used in this chapter, ‘public works’ means: . . . .” (§ 1720,
subd. (a).) The chapter is Chapter 1 of Part 7 of Division 2 of the
Labor Code, and the chapter is called, “Public Works.” The
chapter itself is comprised of multiple articles. The first article,
in which the definition appears, governs “Scope and Operation.”
Other articles are article 1.5, “Right of Action”; article 2, “Wages”
(including the prevailing wage law); article 3, “Working Hours”;
article 4 (repealed), “Employment of Aliens”; and article 5,
“Securing Workers’ Compensation.”
We find significant that the section 1720 definition of
“public works” is not limited to the prevailing wage law, or even
article 2 (Wages) in general. Instead, the definition of “public
works” applies to all of the articles within the chapter.13 Thus,
13 Section 1720 defines “public works” “[a]s used in this
chapter.” This is to be contrasted with, for example, section
1720.2, which begins, “[f]or the limited purposes of Article 2
(commencing with Section 1770) of this chapter [(Wages)], public
works also means . . . .” In other words, the Legislature clearly
knew how to limit a definition of “public works” to the prevailing
wage law when it wanted to do so. It did not do so with section
1720.
14
our interpretation of “public works” in the case before us likely
will apply to the use of that term in other statutes. Those
statutes include the obligation of a governing body awarding a
public works contract to require the contractor to provide
worker’s compensation insurance. (§ 1860.) Other statutes
relying on the same definition included a provision that no
contractor shall discriminate in the employment of persons
employed upon public works, and providing for penalties for such
a violation (§ 1735); and the statute providing that any person
who charges a fee for placing a person in public work thereby
commits a misdemeanor (§ 1779). We see nothing in the
legislation that suggests public works in these contexts apply
only to construction-related activities.
The interrelationship of several statutes becomes relevant
in light of defendant’s argument that section 1720, subdivision (a)
should be interpreted in light of the original purpose of the
prevailing wage law. As we discuss next, the legislative history
shows the intent behind subdivision (a) was broader than just its
application to the prevailing wage law.
iii. The relevant legislative history
The prevailing wage law was enacted in 1931, when several
jurisdictions enacted such laws “in response to the economic
conditions of the Depression, when the oversupply of labor was
exploited by unscrupulous contractors to win government
contracts when private construction virtually stopped.
[Citation.]” (State Building & Construction Trades Council of
California v. Duncan (2008) 162 Cal. App. 4th 289, 294 (Duncan).)
There have been a number of economic upswings and downturns
since 1931, but the prevailing wage law has remained and, in
fact, has been expanded in coverage, leading to the conclusion
15
that the prevailing wage law is now understood to serve a
purpose greater than to assist the construction industry and
labor in recovering from the Great Depression.14
As it is now understood, “[t]he overall purpose of the
prevailing wage law . . . is to benefit and protect employees on
public works projects. This general objective subsumes within it
a number of specific goals: to protect employees from
substandard wages that might be paid if contractors could recruit
labor from distant cheap-labor areas; to permit union contractors
to compete with nonunion contractors; to benefit the public
through the superior efficiency of well-paid employees; and to
compensate nonpublic employees with higher wages for the
absence of job security and employment benefits enjoyed by
public employees.” (Lusardi Construction Co. v. Aubry (1992)
1 Cal. 4th 976, 987.) We see nothing in the legislative history that
suggests the Legislature intended to exclude from these benefits
employees contracted to work for irrigation, utility, and similar
14 Section 1771 was amended in 1974 to render maintenance
work subject to the prevailing wage law. (Reclamation Dist. No.
684 v. Department of Industrial Relations (2005) 125 Cal. App. 4th
1000, 1005 & fn. 6.) The section 1720 definition of “public works”
was amended in 2000 to include design and preconstruction work
(Stats. 2000, ch. 881, § 1); in 2001 to include installation work
(Stats. 2001, ch. 938, § 2); in 2012 to include the assembly and
disassembly of modular office furniture (Stats. 2012, ch. 810, § 1);
in 2014 to include postconstruction work (Stats. 2014, ch. 864,
§ 1); and in 2017 to include tree removal (Stats. 2017, ch. 616,
§ 2) among other amendments. While we are not concerned with
the interpretation of any of these amendments, each of them
clearly sought to expand the protections of the prevailing wage
law (and/or other public works protections) beyond an oversupply
of construction labor in the 1930’s.
16
districts simply because those employees are not working on
construction projects.
The history of the adoption of the key language supports
our conclusion. The prevailing wage law was originally enacted
in 1931. Section 1 provided that the prevailing wage was to be
paid to all laborers, workmen and mechanics “engaged in the
construction of public works.” (Stats. 1931, ch. 397, § 1.) The
provision identified the state and certain political subdivisions
(e.g., county, city, town) as the entities which could contract for
public works. (Ibid.) Section 4 of the statute provided, in
pertinent part, that “[c]onstruction work done for irrigation,
utility, reclamation, improvement and other districts” shall be
considered “public works” within the meaning of the statute.
(Italics added.)
In 1937, California enacted the Labor Code, and with it
came the first appearance of section 1720. (Stats. 1937, ch. 90,
§ 1720, pp. 241-245.) Subdivision (a) of the 1937 version of
section 1720 is the origin of what is now subdivision (a)(1) – it
defined as “public works” “[c]onstruction or repair work done
under contract and paid for in whole or in part out of public
funds . . . .” Subdivision (b) of the 1937 statute is the origin of
what is now subdivision (a)(2); it provided that “public works”
also included “[w]ork done for irrigation, utility, reclamation and
improvement districts, or other districts of this type.” (Ibid.,
italics added.)
It is noteworthy that the 1937 statute removed the word
“construction” from this second clause as it had appeared in
section 4 of the 1931 prevailing wage law quoted above. The
question is why.
17
Defendant argues that “construction” was removed because
it was duplicative of the subdivision (a) definition, but that the
meaning of subdivision (b) (now (a)(2)) was still limited to
construction work done for irrigation, utility, reclamation or
improvement districts, as it had been in 1931. The argument is
based on the implied premise that the definition of “public works”
in the 1937 Labor Code was simply intended to be a restatement
of the definition as it had appeared in the 1931 prevailing wage
law.15 It was not.
The Labor Code, as enacted, was proposed by the California
Code Commission Office. The note to proposed section 1720
explained that the term “public work” was then “defined in
several existing statutes” – and proceeded to identify all five of
15 Defendant mistakenly cites Universities Research Ass’n v.
Coutu (1981) 450 U.S. 754, 756-757, for the proposition that
“when the California Legislature established the Labor Code in
1937, it replaced the 1931 Public Wage Rate Act with a revised,
but substantively unchanged, version of the same law.” The case
says no such thing; it does not speak of California law at all. The
statute the Supreme Court addressed in that case was the federal
Davis-Brown Act. Defendant apparently intended to cite to State
Building & Construction Trades Council of California v. City of
Vista (2012) 54 Cal. 4th 547, 555 (State Building), which contains
the quotation defendant has in its brief. Even our reading of the
State Building case reveals little germane to the present appeals.
Although that case stated the general proposition that the law
was substantially unchanged, it was not concerned with the
language defining “public works.” It dealt with the respective
powers of the State and Charter cities in the prevailing wage
field. A decision is authority only for the points actually involved
and decided. (PacifiCare Life and Health Ins. Co. v. Jones (2018)
27 Cal.App.5th 391, 410.)
18
them: the prevailing wage law; the statute governing
employment of aliens on public works; restrictions on the hours of
labor on public work; statutes pertaining to retaining wages of
employees; and a statute regarding fees for obtaining public
work. (California Code Commission Office, Proposed Labor Code
(1936) Note to section 1720, p. 85.) The note explains, “The
provisions common to all these definitions have been placed in
the above section [1720].” (Ibid.) One of the identified statutes
prohibited the employment of aliens on public works. (Stats.
1931, ch. 398, p. 913.) Section 3 of that statute provided, “Work
done for irrigation, utility, reclamation, improvement and other
districts . . . shall be held to be ‘public work’ within the meaning
of this act.” It is this language – not the language of the
prevailing wage law – which was codified into the definition of
“public works” in the Labor Code.16
In sum, prior to the codification of the Labor Code, the
prevailing wage law limited its definition of “public works” to
construction, but the law preventing the employment of aliens on
public works did not contain such a limitation when it came to
work performed for irrigation, utility, and other districts. When
the Labor Code was codified in 1937, the Legislature put multiple
provisions applicable to “public works” in the same place, and
combined their definitions of “public works.” This had the effect
of broadening the definition of “public works” beyond simply
construction work as it applied to the prevailing wage law.
16 Section 1850, which prohibited the employment of aliens on
public works, remained the law until 1969, when it was declared
unconstitutional. (Purdy & Fitzpatrick v. State (1969) 71 Cal. 2d
566.)
19
iv. The administrative opinions
The trial court in this case relied heavily on a 2005
administrative opinion of the Department of Industrial Relations
(Department), which concluded that subdivision (a)(2) of section
1720 must be limited by the “construction” language of
subdivision (a)(1). Before we discuss the deference we accord that
opinion, it is important to place the opinion historically in the
Department’s treatment of section 1720, subdivision (a)(2).
In 2002, the Department issued an opinion on whether
hauling wastewater materials from a wastewater treatment
plant, for a public utility district, constituted a “public work”
subject to the prevailing wage law. The Department concluded
that it was a “public work,” within the meaning of subdivision
(a)(2), because it was “work done for a utility district.” (Hauling
and Disposal of Wastewater Materials, Public Works Case No.
2002-005 (July 1, 2002).) No claim was made that hauling
wastewater was construction-related work.
In 2005, the Department disagreed with its 2002 opinion,
and de-designated it as precedential. In contrast to that opinion,
the Department held that the hauling of biosolids from a water
treatment plant for a sanitation district did not constitute a
“public work.” In the course of its discussion, it specifically
concluded that “the most reasonable way to define the scope of
section 1720(a)(2) is to require that the work fall within one of
the types of covered work enumerated in section 1720(a)(1).”
(Hauling of Biosolids from Orange County, Public Works Case
No. 2005-009 (April 21, 2006) [as of Nov. 30, 2018]
(Biosolids).)
20
In 2007, the Department de-designated all of its public
works opinions as precedential. It issued a notice explaining that
“posted public works coverage determination letters provide an
ongoing advisory service only. The letters present the Director of
[the Department]’s interpretation of statutes, regulations and
court decisions on public works and prevailing wage coverage
issues and provide advice current only as of the date each letter
is issued. In attempting to relate this advice to your own matter,
care must be taken to ensure that the advice has not been
superseded by subsequent legislative or administrative action or
court decisions.” (Correction of the Important Notice to Awarding
Bodies and Interested Parties Regarding the Department’s
Decision to Discontinue the Use of Precedent Determinations.
[as of
Nov. 30, 2018]; see Duncan, supra, 162 Cal.App.4th at pp. 302-
303.)
Finally, in 2016, the Department reversed itself on section
1720, subdivision (a)(2) again, this time holding that
maintenance of equipment for a water district constituted a
public work under that subdivision. (Public Works Contractor
Registration Requirement for Maintenance Work, Public Works
Case No. 2015-016 (Feb. 5, 2016) [as of Nov. 30, 2018].)
The trial court relied heavily on the second, Biosolids,
opinion, concluding that it was entitled to deference, and,
ultimately, “carrie[d] decisive weight.” Under the circumstances,
however, we conclude that it is entitled to “not much, if any,
deference.” (Duncan, supra, 162 Cal.App.4th at p. 302.) Indeed,
there were three reasons given in the Duncan opinion for why the
Department’s determination should be given minimal deference
21
in that case, and they apply equally to this one. First, as we have
discussed above, the Department has itself concluded that its
decisions are not precedential and should not be entitled to
deference. (Id. at pp. 302-303.) Second, “judicial deference to an
administrative interpretation of a statute is extended if the
interpretation is longstanding, consistent, and if the
interpretation was contemporaneous. [Citation.]” (Id. at p. 303.)
As we have explained, the Biosolids opinion that section 1720,
subdivision (a)(2) has no independent effect outside subdivision
(a)(1) was not long standing; opinions both before and after it
took the opposite view. Thirdly, “the nature of the issue before us
involves the quintessential judicial function. Because the issue
here is a pure one of statutory interpretation, this is not a
situation where the administrative agency ‘ ” ’has a comparative
interpretative advantage over the courts.” ’ ” (Duncan, at p. 304.)
“To the contrary, it is the judiciary which has the ultimate
authority for determining the meaning of a statute.” (Ibid.)
“In short, while we consider the Director’s [of the
Department] current interpretation of section 1720, we do not
extend that interpretation any particular deference. Because
there is no factual dispute, only the question of how that statute
is to be construed and applied, we exercise our independent
judgment.” (Duncan, supra, 164 Cal.App.4th at pp. 304-305.)
The Biosolids opinion, which is not precedential and has since
been superseded by the Department itself, does not justify
ignoring the plain language of the statute and its legislative
history.
v. Existing case authority
Although it does not appear that any case has directly
addressed the precise issue before us, one case has concluded, as
22
we do, that subdivision (a)(2) of section 1720 has independent
effect and is not merely limited to “public works” as defined in
subdivision (a)(1).
Azusa Land Partners v. Department of Industrial Relations
(2011) 191 Cal. App. 4th 1 considered the mirror image of the
argument raised by defendant in this case. In Azusa, the
contractor was hired to do a large construction project, which was
funded, in part, by bonds obtained by an improvement district.
The issue was whether the entire project constituted a public
work, or if only that portion paid for by the improvement district
did. (Id. at pp. 10-11.) Under the plain language of subdivision
(a)(1), the entire project would constitute a public work because it
was “[c]onstruction . . . work done under contract and paid for in
whole or in part out of public funds.” The contractor took the
position that subdivision (a)(2) was a more specific provision
governing work done for improvement districts, and that, as a
more specific provision, it governed over the general provision of
subdivision (a)(1), and, therefore, only the improvements actually
funded by the improvement district constituted public works.
(Azusa, at p. 13.) The court therefore had to construe whether
subdivision (a)(2) was a specific application of a general
subdivision (a)(1) – or if, to the contrary, the two provisions had
equal dignity. It chose the latter path. “Under [subdivision]
(a)(2)’s broader definition, all work done for an improvement
district—even that which would not be covered by the narrower
categories listed in [subdivision] (a)(1)—is ‘public work.’ Under
this reasoning, with which we concur, subdivision (a)(2) may
apply independently to cover some work for an improvement
district not otherwise encompassed within subdivision (a)(1)’s
enumerated categories.” (Azusa, supra, at p. 21.)
23
vi. The “operations” exception
Our conclusion that subdivision (a)(2) of section 1720 is not
limited by subdivision (a)(1) means that the recycling work done
for the sanitation districts in this case constitutes “public work”
unless a statutory exception applies. Defendant argues that the
“operations” exception applies. We quote section 1720,
subdivision (a)(2)’s definition of “public work” again: “Work done
for irrigation, utility, reclamation, and improvement districts,
and other districts of this type. ‘Public work’ does not include the
operation of the irrigation or drainage system of any irrigation or
reclamation district, except as used in Section 1778 relating to
retaining wages.”
Defendant’s argument that the operations exception applies
is raised for the first time in its respondent’s brief on appeal; it
did not raise this argument in its motion to strike in the trial
court. We therefore consider the argument waived. In any event,
it is foreclosed by the plain language of the statute. While work
done for “irrigation, utility, reclamation, and improvement
districts, and other districts of this type” is defined as public
work, the operations exception applies only to the specific
“operation of the irrigation or drainage system of any irrigation
or reclamation district,” not the operation of all of the identified
districts in general. The operation of a recycling system for a
sanitation district is not the operation of an irrigation or drainage
system of an irrigation or reclamation district. The exception
simply does not apply.
c. Conclusion
In sum, we hold that the “construction” language limiting
the definition of “public works” in subdivision (a)(1) of section
1720 does not also limit the definition of “public works” in
24
subdivision (a)(2) of that statute. Instead, subdivision (a)(2) is to
be read independently. When we do so, we conclude defendant’s
motion to strike plaintiffs’ prevailing wage law claim was
improperly granted.
2. The claim of failure to pay minimum wages
As we have observed, there is no issue on this appeal about
the propriety of the judgment to the extent it awarded plaintiffs
meal period premium pay under section 226.7. Under section
512, defendant was required to provide plaintiffs “with a meal
period of not less than 30 minutes.” (§ 512, subd. (a).) The
remedy for its failure to do so is the premium pay specified in
section 226.7.17
The disputed issue is whether or not, in addition to
recovering an hour of premium pay, plaintiffs are also entitled to
recover wages for the three to five minutes they were required to
work during their meal periods.
As indicated earlier, the trial court concluded that
employees “who lost three to five minutes of a 30 minute break”
were not entitled to recover wages “for all or any portion of the
meal period.” Plaintiffs challenge the trial court’s conclusion that
premium pay for the meal period violation is their exclusive
remedy, contending that the “the right to be paid the minimum
wage” for “time worked during meal periods,” and “the right to a
17 Section 226.7, subdivision (c) provides: “If an employer
fails to provide an employee a meal or rest or recovery period in
accordance with state law, including . . . an applicable statute . . .
or order of the Industrial Welfare Commission, . . . the employer
shall pay the employee one additional hour of pay at the
employee’s regular rate of compensation for each workday that
the meal or rest or recovery period is not provided.”
25
meal period premium for non-compliant meal periods are
separate rights” giving rise to distinct and cumulative remedies.
We agree with plaintiffs to this extent: the right to be free
from employer control for a 30-minute meal period, and the right
to be paid for time worked during that meal period, are distinct
rights with distinct remedies. The remedy for an employer
violation of the former right is the hour of premium pay provided
under section 226.7. The remedy for the latter is payment of
wages for time worked (see § 1194), along with any applicable
penalties for the failure to pay for time worked when the wages
were due. But we find no persuasive basis in legal authorities to
support plaintiffs’ claim that their remedy for time worked
during the meal period is payment of wages for the full 30-minute
meal period, rather than payment of wages for the three to five
minutes actually worked.
a. The legal background
The Supreme Court has described the origin and
development of California law governing wages and working
conditions in Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal. 4th 1004, 1026-1027 (Brinker). As pertinent here, Brinker
explained that nearly a century ago, the Legislature established
the Industrial Welfare Commission (IWC), and delegated to it the
authority “to investigate various industries and promulgate wage
orders fixing for each industry minimum wages, maximum hours
of work, and conditions of labor.” (Id. at p. 1026.) In 1916, the
IWC “began issuing industry- and occupationwide wage orders
specifying minimum requirements with respect to wages, hours,
and working conditions [citation]. In addition, the Legislature
has from time to time enacted statutes to regulate wages, hours,
and working conditions directly. Consequently, wage and hour
26
claims are today governed by two complementary and
occasionally overlapping sources of authority: the provisions of
the Labor Code, enacted by the Legislature, and a series of 18
wage orders, adopted by the IWC.”18 (Ibid.)
Brinker tells us the statutory provisions “ ’are to be
liberally construed with an eye to promoting [employee]
protection.’ ” (Brinker, supra, 53 Cal.4th at pp. 1026-1027.) The
IWC’s wage orders “are entitled to ‘extraordinary deference, both
in upholding their validity and in enforcing their specific terms.’ ”
(Id. at p. 1027.) “[T]he relevant wage order provisions must be
interpreted in the manner that best effectuates that protective
intent.” (Ibid.) Indeed, “[t]he IWC’s wage orders are to be
accorded the same dignity as statutes. They are ‘presumptively
valid’ legislative regulations of the employment relationship
[citation], regulations that must be given ‘independent effect’
separate and apart from any statutory enactments [citation]. To
the extent a wage order and a statute overlap, we will seek to
harmonize them, as we would with any two statutes.” (Ibid.)
Here, wage order No. 4, governing professional, technical,
clerical, mechanical and similar occupations, applies. The wage
order requires the employer to “pay to each employee . . . not less
than the applicable minimum wage for all hours worked,” and
“hours worked” means “the time during which an employee is
subject to the control of an employer . . . .” (Cal. Code Regs.,
tit. 8, § 11040, subds. 4(B) & 2(K).)
18 The Legislature stopped funding the IWC in 2004, but its
wage orders remain in effect. (Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal. 4th 1094, 1102, fn. 4 (Murphy).)
27
The wage order also regulates meal periods. The order
distinguishes on-duty and off-duty meal periods, sets the
requirements for each, and (since it was amended in October
2000) specifies a remedy – as in section 226.7, one hour of
premium pay – “[i]f an employer fails to provide an employee a
meal period in accordance with the applicable provisions of this
order.” (Cal. Code Regs., tit. 8, § 11040, subd. 11.)
There are two pertinent provisions of the wage order
governing meal periods. The first – which has been in the wage
order in substantially the same form for many decades – states:
“(A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of
not less than 30 minutes, except that when a work period of
not more than six (6) hours will complete the day’s work
the meal period may be waived by mutual consent of the
employer and the employee. Unless 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. An ‘on duty’ meal period shall
be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by
written agreement between the parties an on-the-job paid
meal period is agreed to. The written agreement shall state
that the employee may, in writing, revoke the agreement at
any time.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(A).)
The second pertinent provision was added to the wage
order as of October 1, 2000. It states:
“(B) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this
order, the employer shall pay the employee one (1) hour of
28
pay at the employee’s regular rate of compensation for each
workday that the meal period is not provided.” (Cal. Code
Regs., tit. 8, § 11040, subd. 11(B).)
The IWC explained, in its “Statement as to the Basis” for the
amendment, that it had “heard testimony and received
correspondence regarding the lack of employer compliance with
the meal and rest period requirements of its wage orders. The
IWC therefore added a provision to this section that requires an
employer to pay an employee one additional hour of pay at the
employee’s regular rate of pay for each work day that a meal
period is not provided.” (IWC wage orders Nos. 1 – 13, 15 & 17,
Jan. 1, 2001, Statement as to the Basis, § 11, p. 20,
[as
of Nov. 30, 2018].)
The latter provision of the wage order became effective
shortly before section 226.7 went into effect on January 1, 2001.
Section 226.7 made the wage order’s stated remedy for a meal
period violation – “one additional hour of pay at the employee’s
regular rate of compensation” – a statutory remedy as well.
b. Contentions and conclusions
Plaintiffs rely on the meal period provisions of the wage
order to insist that, in addition to the premium pay remedy under
section 226.7 and the wage order, they are entitled to payment of
the minimum wage for the entire 30 minutes of the improperly
shortened meal periods. Plaintiffs contend in substance that
truncating the meal period by a few minutes created a de facto
“on duty” meal period, requiring the entire 30 minutes be
“counted as time worked” under the wage order. Defendant, on
the other hand, contends plaintiffs are entitled only to the
29
premium pay, and are not entitled to compensation for time
worked during the meal period. Both are mistaken.
c. Defendant’s contention
We begin with the observation that plaintiffs have the right
to be paid for all hours worked. “Hours worked” is defined as “the
time during which an employee is subject to the control of an
employer, and includes all the time the employee is suffered or
permitted to work, whether or not required to do so.” (Cal. Code
Regs., tit. 8, § 11040, subd. 2(K).) Plaintiffs were subject to
defendant’s control for three to five minutes of every meal period.
They are entitled to compensation for that work. While
defendant argued below that this was a “de minimis” incursion
into the 30-minute meal period, the trial court properly rejected
that notion, stating: “The evidence is that employees lost three to
five minutes of a 30 minute break. A 13 percent deprivation of a
break is not de minimis. When time is scarce, minutes count. On
a 30-minute break, time is scarce.”
Defendant insists that premium pay is the exclusive
remedy for a meal period violation. But there was both a meal
period violation (failure to provide a 30-minute period free from
employer control) and a minimum wage violation (failure to pay
wages for time actually worked during the meal period). These
are violations of separate rights for which there are separate
statutory remedies.
Defendant says the Supreme Court “firmly debunked” the
idea that plaintiffs could recover for both violations in Kirby v.
Immoos Fire Protection, Inc. (2012) 53 Cal. 4th 1244 (Kirby), but
Kirby did no such thing. Indeed, Kirby, like other authorities,
confirms the distinct regulatory objectives of protecting wages
and ensuring the health and welfare of workers. (See also
30
Murphy, supra, 40 Cal.4th at p. 1104 [an employee forced to forgo
a meal period “loses a benefit to which the law entitles him or
her,” and “[w]hile the employee is paid for the 30 minutes of
work, the employee has been deprived of the right to be free of
the employer’s control during the meal period”].)
There was no contention in Kirby that minimum wages
were owed for hours worked during meal periods. Kirby was an
attorney fee case, and concluded, among other things, that
“section 1194 does not authorize an award of attorney’s fees to
employees who prevail on a section 226.7 action for the
nonprovision of statutorily mandated rest periods,” and that
section 1194 does not apply “to anything other than claims for
unpaid minimum wages” or unpaid overtime. (Kirby, supra,
53 Cal.4th at pp. 1254, 1255, 1252; see id. at p. 1257 [“the legal
violation triggering the [section 226.7] remedy” is “nonprovision
of meal or rest breaks,” and not “nonpayment of wages”].)
Nothing the court said in Kirby is inconsistent with a
plaintiff’s right to recover both minimum wages for time worked
during meal periods and premium pay for the meal period
violation. Quite the contrary. This is not a case where defendant
paid the employees for all hours worked and simply failed to
provide a meal period during that time. Defendant made the
employees work for part of the meal period, did not pay them for
the time worked, and in addition did not comply with the meal
period requirement – which is “not aimed at protecting or
providing employees’ wages,” but instead is concerned with
“ensuring the health and welfare of employees by requiring that
employers provide meal and rest periods as mandated by the
IWC.” (Kirby, supra, 53 Cal.4th at p. 1255.)
31
In short, Kirby does not support defendant’s assertion that
premium pay is plaintiffs’ exclusive remedy for two different
violations, and neither does any other authority. The authorities
are to the contrary. When a meal period is considered an “on
duty” meal period, the employee is entitled to payment for time
worked, and also to premium pay if the requirements for a
permissible on-duty meal period are not met. An opinion letter
from the Division of Labor Standards Enforcement (DLSE)
supports this point, and so does the Brinker opinion.
In a case involving a driver transporting hazardous
materials who was required to remain with or close to his truck
at all times, the DLSE opined: “[A] meal period provided to a
Company driver transporting hazardous materials who is not
relieved of his or her duty to remain with or remain close to his or
her truck as a consequence of their obligations under [federal
law] is not an off-duty meal period . . . . [T]he meal period under
these circumstances is considered an on-duty meal period and
must be counted as time worked. Furthermore, unless the
conditions are met for an on-duty meal period as required under
[the wage order], such a driver would be entitled to one additional
hour of pay at the employee’s regular rate of compensation under
Labor Code [section] 226.7 and [the wage order].” (Meal Periods
for Fuel Carriers Subject to Federal Safety Regulations (June 9,
2009), pp. 5-6 italics added, [as of Nov. 30, 2018] (Fuel Carriers).)
Brinker noted with approval the DLSE’s position that both
remedies are available. In the course of the court’s discussion of
the fact that an employer must relieve its employee of all duty
during a meal period, but need not ensure that no work is done,
the court said this: “[B]ecause the defining characteristic of on-
32
duty meal periods is failing to relieve an employee of duty, . . . it
follows that off-duty meal periods are similarly defined by
actually relieving an employee of all duty: doing so transforms
what follows into an off-duty meal period, whether or not work
continues.” (Brinker, supra, 53 Cal.4th at pp. 1039-1040.) By
way of footnote, the court added:
“If work does continue, the employer will not be liable for
premium pay. At most, it will be liable for straight pay, and then
only when it ‘knew or reasonably should have known that the
worker was working through the authorized meal period.’
[Citations.] The DLSE correctly explains the distinction in
its amicus curiae brief: ‘The employer that refuses to
relinquish control over employees during an owed meal
period violates the duty to provide the meal period and
owes compensation [and premium pay] for hours worked.
The employer that relinquishes control but nonetheless knows or
has reason to know that the employee is performing work during
the meal period, has not violated its meal period obligations [and
owes no premium pay], but nonetheless owes regular
compensation to its employees for time worked.’ ” (Brinker,
supra, 53 Cal.4th at p. 1040, fn. 19 [bracketing of “and premium
pay” in original; boldface & italics added].)
Accordingly, the trial court erred when it concluded
plaintiffs could not recover minimum wages for time worked
during their meal periods. We therefore reverse the judgment on
that point and remand with instructions to award minimum
wages for time worked during the meal periods.
d. Plaintiffs’ contention
That brings us to plaintiffs’ contention that, because they
were not relieved of all duty for the entire 30-minute meal period,
33
they are entitled to the minimum wage for 30 minutes (rather
than only for the three to five minutes actually worked), in
addition to premium pay for the meal period violation. This too is
mistaken.
Plaintiffs rely on this language in the IWC’s wage order:
“Unless 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.” From this principle,
plaintiffs conclude their truncated meal periods were
transformed into on-duty meal periods, and therefore must be
“counted as time worked” under the wage order.
Plaintiffs correctly point out that the equivalent of an on-
duty meal period may exist, even if the conditions for a legally
permissible on duty meal period do not. That much is obvious
from the authorities we have just discussed. And, we
acknowledge that, if considered in isolation, the wage order
provision just quoted could be construed as plaintiffs suggest.
But we cannot construe the provision in isolation. Instead, we
must construe it in conjunction with the rest of the wage order
and with the statute, all of which we must harmonize. (See
Brinker, supra, 53 Cal.4th at p. 1027.) Doing so, we necessarily
conclude that a truncated meal period, such as occurred in this
case, is not in every case the equivalent of an on-duty meal
period. This conclusion flows from settled legal principles, from
the history of the wage order, and from the circumstances of this
case, which are fundamentally different from those in the
authorities plaintiffs cite.
At the outset, we bear in mind that plaintiffs are asserting
a claim of failure to pay the minimum wage. The settled legal
principle applicable to a claim for minimum wages is that
34
employees must be paid the minimum wage for all hours worked
– and “[h]ours worked” means “the time during which an
employee is subject to the control of an employer . . . .” (Cal. Code
Regs., tit. 8, § 11040, subd. 2(K).)
In this case plaintiffs were entirely free of employer control
for (on average) 26 minutes of the 30-minute period. Thus the
“defining characteristic of on-duty meal periods” – “failing to
relieve an employee of duty” (Brinker, supra, 53 Cal.4th at
p. 1039) – does not exist for most of the 30-minute meal period.
Plaintiffs were “actually reliev[ed] . . . of all duty” during that
time (the defining characteristic of an off-duty meal period). (Id.
at p. 1040.) In other words, this case involves meal periods that
were partly on-duty but mostly off-duty: plaintiffs were subjected
to defendant’s control for an average of four minutes, and were
otherwise “free to come and go as they please.” (Id. at p. 1037.)
Under minimum wage provisions, this entitled them to four
minutes of compensation – not 30 minutes.
It is clear, then, that plaintiffs’ assertion they should be
paid the minimum wage for the entire 30-minute meal period is
not actually based on minimum wage requirements; it is based
solely on the meal period provisions of the wage order. But both
the wage order as amended (and the statute) impose only one
consequence for “fail[ure] to provide an employee a meal period in
accordance with the applicable provisions of this order,” and that
is “one (1) hour of pay at the employee’s regular rate of
compensation for each workday that the meal period is not
provided.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(B).)
Plaintiffs, in effect, seek to increase the consequences for a meal
period violation to one and a half hours of pay instead of one
35
hour. There is no basis in the statute or wage order, and no other
legal authority, for doing so.
The history of the meal period provisions of the wage order
and the DLSE’s implementation of those provisions confirm that
neither the IWC nor the Legislature intended the result plaintiffs
seek.
First, the wage order provision on which plaintiffs rely –
requiring the 30-minute meal period to be “counted as time
worked” unless the employee is relieved of all duty – pre-dated by
many decades the IWC’s amendment to the wage order in 2000
(and the enactment of section 226.7) that provided a remedy for
meal period violations. (The same language is in the 1976 wage
order (IWC wage order No. 4-76, § 11(A) (effective Oct. 18, 1976)),
and the language dates back in substance to 1947.)19 Thus,
before the amendment to the wage order, and the passage of
section 226.7, both of which occurred in 2000, there was no
remedy for a meal period violation. The only “remedy” for any
failure to relieve the employee of all duty for 30 minutes was to
count the 30-minute meal period as time worked, necessarily
requiring compensation for that time. As the IWC observed when
it amended the wage order, that “remedy” did not work: the IWC
amended the order because of “the lack of employer compliance
19 In 1947, the meal period provision stated: “30-minute meal
period after 5 consecutive hours of work. ‘On duty’ meal period is
permitted only when the nature of the work prevents an
employee from being relieved of all duty, and such ‘on duty’ meal
period must be counted as hours worked without deduction from
wages.” (Wage and Hour Manual, The Bureau of National
Affairs, Inc. (1947 ed.), Part IV, State Wage, Hour, and Child
Labor Laws, §§ 2.053 & 2.53, pp. 3302, 3307 (June 1, 1947).)
36
with the meal and rest period requirements of its wage orders.”
After the amendment, by contrast, the employer owed
compensation (as it always had) “ ’for hours worked’ ” and owed
an additional hour of pay (premium pay) for the meal period
violation. (See Brinker, supra, 53 Cal.4th at p. 1040, fn. 19.)
Second, the legal authorities, both before and after the IWC
and the Legislature added a remedy for meal period violations in
2000, involved cases where the employees were subject to the
employer’s control throughout the statutorily mandated meal
period. In those circumstances, the employee was entitled to
payment of wages for the whole meal period, because the
employee was subject to employer control during the entire meal
period. (See, for example, Bono Enterprises, Inc. v. Bradshaw
(1995) 32 Cal. App. 4th 968, 979 [employees who were required to
remain on the work premises during their lunch hour had to be
compensated for that time under the definition of “hours
worked”], disapproved on another point in Tidewater Marine
Western, Inc. v. Bradshaw (1996) 14 Cal. 4th 557, 574; see also
Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal. 4th 833,
842 [citing Bono as holding that “time employee is required to
remain at workplace during lunch constitutes hours worked even
when relieved of all job duties”]; Fuel Carriers, supra,
, p. 5
[where truck driver was required by law to remain with or close
to truck during meal period, the meal period was considered on-
duty and had to be counted as time worked] [as of Nov. 30,
2018].)
None of those authorities addresses a circumstance where,
as here, the employee is provided a control-free meal period,
albeit not for the full 30 minutes. Had such circumstances
37
occurred prior to the wage order amendment and section 226.7, it
may well have been appropriate to require payment for the whole
30-minute meal period, as no other remedy existed for the meal
period violation. But with the amended wage order and the
passage of section 226.7, the IWC and the Legislature went a step
further, by expressly requiring the employer to compensate the
employee with an hour’s pay, not just 30 minutes, at the regular
rate of pay, for the meal period violation. There is no evidence
the IWC or the Legislature intended to require the employer to
compensate the employee for an hour and 30 minutes for a meal
period violation, unless the employee actually worked (or was
subject to the employer’s control) for the entire 30-minute period.
In short, the wage order provision plaintiffs cite has no
application where the employee is fully compensated, both for his
or her time worked during the meal period and for the meal
period violation.
Plaintiffs place particular reliance on language in a DLSE
opinion letter issued in 1992, stating that “[s]ince the IWC orders
require that the employee have a duty-free meal period, any
‘duty’ which interferes with the meal period (even if the ‘duty’
required de minimis time) would require that the whole of the
meal period be paid.” (Use of ‘Beepers,’ Jan. 28, 1992,
, p. 3 [as of
Nov. 30, 2018] (Use of Beepers). But that case was decided years
before the wage order was amended and section 226.7 was
enacted. And the circumstances in Use of Beepers were not
significantly different from those in other cases where the DLSE
has required payment of wages for the entire 30-minute meal
period. In Use of Beepers, the employee was required to wear a
pager during the entirety of the meal period and to respond to
38
any pager call that might occur during that time. It was in that
context that the DLSE opined that, if the employee handled a
pager call during the meal period, even if the call required “de
minimis” time, “the whole of the meal period [must] be paid.”
(Use of Beepers, at p. 3.) Significantly, the DLSE concluded that
if the employee “who is simply required to wear the pager is not
called upon during the meal period to respond, there is no
requirement that the meal period be paid for,” but “if the
employee responds, as required, to a pager call during the meal
period, the whole of the meal period must be compensated.”
(Ibid.) This opinion letter does not support plaintiffs’ position for
the additional reason that the DLSE did not conclude that being
subject to the employer’s control as a consequence of having to
wear and respond to a pager was compensable for the entire meal
period unless the employee had to respond to a page.20
In short, there is no contradiction between the DLSE’s Use
of Beepers opinion and the conclusion we reach here. Use of
Beepers, pre-dating the amended wage order, required payment
of 30 minutes in wages for requiring an employee to work during
any part of the 30-minute meal period. The amended wage order
requires more, expressly providing a remedy of one hour’s pay for
any intrusion, however small, into the meal period. We can
20 Much more recently, the Supreme Court held that on-call
rest periods, where employees were required to keep their radios
and pagers on and to respond when the need arose, “do not
satisfy an employer’s obligation to relieve employees of all work-
related duties and employer control.” (Augustus v. ABM Security
Services, Inc. (2016) 2 Cal.5th 257, 260-261, 270; see id. at p. 272
[employers had the option of providing another rest period to
replace the interrupted rest period or pay the premium pay set
forth in section 226.7].)
39
require no more, so long as employees are also compensated for
all time worked during any shortened meal period.
Plaintiffs also rely on language from a 2002 DLSE opinion
that responded (in the negative) to the question whether an
employer in the fast food industry could have an on-duty meal
period arrangement with an employee. As a prelude to its
analysis, the opinion recited the general rule requiring an off-
duty meal period and its requirements (no requirement to work,
no employer control, 30-minute minimum), continuing: “If any of
these conditions are not present, the time, if any, during which
the employee is permitted to eat his or her meal is considered on-
duty time, which is treated as ‘hours worked’ for which the
employee must be paid at his or her regular rate of pay.” (On-
Duty Meal Periods, Sept. 4, 2002, p. 2, [as of Nov. 30, 2018].) We see
nothing in this opinion that is pertinent to the very different facts
of this case. Like the other rulings, the DLSE’s opinion
contemplated an employee on duty during the 30-minute meal
period – not a shortened meal period. So far as we are aware, the
DLSE has not offered an opinion on circumstances comparable to
those at issue here.21
To summarize: No authority supports the claim that the
wage order as it exists today requires payment of 30 minutes of
wages for any incursion, however short, into the meal period, in
21 Plaintiffs also cite Alvarez v. IBP, Inc. (9th Cir. 2003)
339 F.3d 894, 913-914, where the court held that the state of
Washington’s meal period regulations required compensation for
the full 30-minute period if the employer intruded upon or
infringed the 30 minutes “to any extent.” We see no reason to
consider a federal court’s construction of the law of another state.
40
addition to the hour of premium pay for the same incursion into
the meal period. The wage order as amended and section 226.7
both expressly provide the remedy for failure to provide a meal
period. That remedy is one hour of pay at the employee’s regular
rate for each workday that the meal period is not provided. The
wage order also requires payment for all “hours worked,”
expressly defined as “the time during which an employee is
subject to the control of an employer.”
We therefore construe the wage order to require premium
pay for the meal period violation and payment of minimum wages
for all time worked – but no more. “Time worked” does not
include time during which employees “are relieved of any duty or
employer control and are free to come and go as they please.”
(Brinker, supra, 53 Cal.4th at p. 1037; see Morillion v. Royal
Packing Co. (2000) 22 Cal. 4th 575, 584 [finding persuasive the
DLSE’s interpretation of “hours worked,” namely, “ ’Under
California law it is only necessary that the worker be subject to
the “control of the employer” in order to be entitled to
compensation.’ ”].) Where there is no control, no compensation
for “hours worked” is due. This construction fulfills both
legislative mandates: that employees be paid for all time worked,
and that employers provide an uninterrupted 30-minute meal
period (or else pay an extra hour of compensation). We are
persuaded neither the Legislature nor the IWC intended
anything more.22
22 We asked the parties to address in supplemental briefs the
impact, if any, of the recently decided case of Troester v.
Starbucks Corp. (2018) 5 Cal.5th 829. We have considered those
briefs and conclude the case does not affect our analysis.
41
3. Civil penalties for failure to pay minimum wages
Plaintiffs sought civil penalties under PAGA, which
permits recovery in a representative action of any civil penalties
that otherwise may be assessed for violations of the Labor Code.
(§ 2699.) Plaintiffs sought penalties for the meal period
violations under section 558, and for the minimum wage
violations under section 1197.1. The trial court awarded
penalties for the meal period violations, but found plaintiffs’
claim for penalties under section 1197.1 “fails because it is based
on [plaintiffs’] invalid claim for failure to pay minimum wages.”
Because we have found the trial court erred in finding no
minimum wages were owed for time worked during the shortened
meal periods, it necessarily follows that the trial court also erred
in rejecting plaintiffs’ claim for civil penalties for the payment of
“a wage less than the minimum . . . .” (§ 1197.1, subd. (a).)
We note that, while defendant is subject to penalties for
violations of both section 512 (the meal period claims) and section
1194 (the minimum wage claims), the court “may award a lesser
amount than the maximum civil penalty amount specified . . . if,
based on the facts and circumstances of the particular case, to do
otherwise would result in an award that is unjust, arbitrary and
oppressive, or confiscatory.” (§ 2699, subd. (e)(2).) We express no
opinion on what penalty, if any, should be awarded for the
violation of section 1194 greater than the $53,293.50 already
awarded for the violation of section 512.
4. Waiting time penalties.
“The prompt payment provisions of the Labor Code impose
certain timing requirements on the payment of final wages to
employees who are discharged ([§ 201]) and to those who quit
their employment (§ 202).” (McLean v. State of California (2016)
42
1 Cal.5th 615, 619.) “An ‘employer’ that ‘willfully fails to pay’ in
accordance with sections 201 and 202 ‘any wages of an employee
who is discharged or who quits’ is subject to so-called waiting-
time penalties of up to 30 days’ wages. (§ 203, subd. (a).)”
(Ibid.)23
In the trial court, plaintiffs sought waiting time penalties.
Their claim was based both on failure to treat the whole meal
period as “time worked” and on failure to pay the meal period
premium pay. Defendant contended, among other points, that its
alleged violations were not willful. The trial court held no
waiting time penalties applied, because no minimum wages were
owed for the shortened meal periods, and because the meal period
premiums were “not a wage that could trigger waiting time
penalties.”
The question whether violations of meal period regulations
give rise to claims for waiting time penalties under section 203 is
among the issues raised in a request for certification of questions
from the Ninth Circuit Court of Appeals, recently granted by the
California Supreme Court. (Stewart v. San Luis Ambulance, Inc.
(9th Cir. 2017) 878 F.3d 883, request for certification granted
Mar. 28, 2018, S246255.) We need not consider the issue in this
case because we have concluded, contrary to the trial court’s
23 Under section 201, “[i]f an employer discharges an
employee, the wages earned and unpaid at the time of discharge
are due and payable immediately.” (§ 201, subd. (a).) Under
section 202, “[i]f an employee . . . quits his or her employment, his
or her wages shall become due and payable not later than 72
hours thereafter, unless the employee has given 72 hours
previous notice of his or her intention to quit, in which case the
employee is entitled to his or her wages at the time of quitting.”
(§ 202, subd. (a).)
43
ruling, that defendant owed minimum wages for time worked
during the improperly shortened meal periods. Because this is a
proper basis for plaintiffs’ claim for waiting time penalties under
section 203, we must reverse the trial court’s judgment to the
extent it denies recovery of waiting time penalties and remand
for consideration of plaintiffs’ claim and defendant’s contentions.
5. The attorney fee appeal
In its motion for attorney fees under PAGA and Code of
Civil Procedure section 1021.5, counsel sought compensation for
1,745.80 hours of attorney time at rates of $650 and $600 an
hour, producing a lodestar of $1,095,140. The trial court
questioned the lodestar amount, but used it and applied a
“negative” multiplier of 10 percent. Among other things, the
court observed the number of hours was “suspect”; the hourly
rates were “purely aspirational”; the case “addressed a minor
problem and achieved a minor result”; the case (the law, the facts
and the trial) was simple and strongly in plaintiffs’ favor (“not a
highly risky venture”); and a cross-check confirmed “a 0.1
multiplier is appropriate,” because it yielded a fee that was
39 percent of the recovery. The court thus awarded attorney fees
of $109,514.
As noted at the outset, the amount of plaintiffs’ recovery
will necessarily change as a result of our decision, and this may
in turn affect the trial court’s analysis of the appropriate amount
of the attorney fee award. We therefore vacate the award and
remand to enable the court to exercise its discretion to reconsider
the amount of the fee award, should it so choose.
DISPOSITION
The judgment in the merits appeal (B276420) is reversed.
The cause is remanded to the trial court for further proceedings
44
to address the calculation of minimum wages owing, the award of
civil penalties based on failure to pay minimum wages, and
reconsideration of waiting time penalties, as well as to allow
plaintiffs to pursue their prevailing wage law claim. The trial
court’s order awarding attorney fees (B279838) is vacated to
permit the trial court to reconsider attorney fees following
remand.
The plaintiffs shall recover their costs on appeal.
RUBIN, J.
I concur:
BIGELOW, P.J.
45
Kaanaana et al. v. Barrett Business Services, Inc., et al.
B276420; B279838
Grimes, J., concurring and dissenting.
I concur with the majority opinion on all points except the
application of the prevailing wage to the work performed by
plaintiffs. In my view, the statutory provisions requiring
payment of prevailing wage rates do not apply because plaintiffs
are not engaged in “public works” within the meaning of the
prevailing wage law (Lab. Code, §§ 1720-1861).1
I agree with the majority that “[w]ork done for irrigation,
utility, reclamation, and improvement districts, and other
districts of this type” is not confined to “construction work.” As
the majority correctly points out, the prevailing wage law
originally protected construction workers, and has been expanded
over the years “to benefit and protect employees on public works
projects.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal. 4th
976, 987.)
But as I see it, throughout the various expansions of the
term “public works” in the section 1720 definition, the term has
in every case involved work on “public works projects” that in
some way concerns infrastructure – the physical facilities that
constitute “public works projects” or public improvements.2 I
have never seen the term applied to routine work (here, sorting
1 Further statutory references are to the Labor Code.
2 Black’s Law Dictionary (10th ed.) at page 900 defines
“infrastructure” as follows: “(1927) The underlying framework of
a system; esp., public services and facilities (such as highways,
schools, bridges, sewers and water systems) needed to support
commerce as well as economic and residential development.”
recyclables) performed inside a publicly owned or operated
facility, having nothing to do with work on or affecting the
physical facility itself. As a consequence, I am not persuaded
that the Legislature – either in 1937 or later – intended to treat
“[w]ork done for . . . improvement districts” in a radically
different fashion from work done for other agencies of the state
and its political subdivisions.
I believe my construction of the definition of “public works”
is entirely consonant with the intent of the Legislature, is not
contradicted by the limited legislative history available on the
point, and is supported by principles of statutory construction
that require us to read statutory provisions in a way that does
not lead to disharmony with the rest of the statute.
1. The Pertinent Statutory Provisions
For clarity, I repeat the text of the statutory provisions at
issue and already quoted in the majority opinion.
The prevailing wage law requires that, “[e]xcept for public
works projects of one thousand dollars ($1,000) or less,” the
general prevailing rate of per diem wages for similar work “shall
be paid to all workers employed on public works.” (§ 1771.) This
prevailing wage requirement applies only to work performed
under contract (not to work carried out by a public agency with
its own employees), and it applies to contracts for maintenance
work. (Ibid.)
Section 1720 defines “public works.” There are eight
categories of “public works” included in the definition. The
second of these is at issue in this case.
The first category of public works (§ 1720, subd. (a)(1),
hereafter section 1720(a)(1)) is: “Construction, alteration,
demolition, installation, or repair work done under contract and
2
paid for in whole or in part out of public funds . . . . For purposes
of this paragraph, ‘construction’ includes work performed during
the design and preconstruction phases of construction, including,
but not limited to, inspection and land surveying work, and work
performed during the postconstruction phases of construction,
including, but not limited to, all cleanup work at the jobsite. For
purposes of this paragraph, ‘installation’ includes, but is not
limited to, the assembly and disassembly of freestanding and
affixed modular office systems.”
The second category of public works (§ 1720, subd. (a)(2),
hereafter section 1720(a)(2)) is: “Work done for irrigation, utility,
reclamation, and improvement districts, and other districts of
this type. ‘Public work’ does not include the operation of the
irrigation or drainage system of any irrigation or reclamation
district . . . .” (For simplicity, I will refer to this provision as
“[w]ork done for . . . improvement districts,” since a sanitation
district is a “district[] of this type.”)
There are six additional categories of public works. They
are all what I would describe as construction-related activities or
work on public improvements – that is, work that in one way or
another affects the infrastructure that constitutes a public
facility or project. Thus, public works also include:
“Street, sewer, or other improvement work . . . .” (§ 1720,
subd. (a)(3).)
“The laying of carpet done under a building lease-
maintenance contract and paid for out of public funds.” (§ 1720,
subd. (a)(4).)
“The laying of carpet in a public building done under
contract and paid for in whole or in part out of public funds.”
(§ 1720, subd. (a)(5).)
3
“Public transportation demonstration projects . . . .”
(§ 1720, subd. (a)(6).)
“Infrastructure project grants” from a fund pursuant to the
Public Utilities Code. (§ 1720, subd. (a)(7)(A).)
“Tree removal work done in the execution of a project under
[section 1720(a)(1)].” (§ 1720, subd. (a)(8).)
Every one of these categories – except, under the majority’s
interpretation, section 1720(a)(2) – involves work that directly
affects physical facilities or improvements, i.e., infrastructure
work.
2. The Rules Governing Statutory Construction
The rules of statutory construction have been repeated
many times. “[W]e look first to the words of a statute, ‘because
they generally provide the most reliable indicator of legislative
intent.’ [Citation.] We give the words their usual and ordinary
meaning [citation], while construing them in light of the statute
as a whole and the statute’s purpose [citation]. ‘In other words,
“ ‘we do not construe statutes in isolation, but rather read every
statute “with reference to the entire scheme of law of which it is
part so that the whole may be harmonized and retain
effectiveness.” ’ ” ’ [Citation.] We are also mindful of ‘the general
rule that civil statutes for the protection of the public are,
generally, broadly construed in favor of that protective purpose.’ ”
(Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal. 4th 524,
529-530 (Pineda).)
3. The Proper Construction of Section 1720(a)(2)
Plaintiffs contend, and the majority agrees, that “[w]ork
done” for a sanitation district – section 1720(a)(2) – means that
all work done for a sanitation district by a contractor’s
employees, regardless of the nature of the work performed,
4
constitutes a public works project covered by the prevailing wage
law. In reaching this conclusion, the majority discusses the
structure of section 1720, the statutory language, the legislative
history, the administrative opinions that have construed
section 1720(a)(2), and existing case authority.
While I agree with some points the majority makes, I do
not reach the same conclusion. In the end, it seems to me the
intent of the Legislature, as reflected in the “Public Works”
chapter of the Labor Code, confines the definition of “public
works” – whether “construction” or not – to work on the
infrastructure that constitutes a “public works project[].” Sorting
recyclables in a facility owned by a sanitation district is not work
that in any way affects the infrastructure itself, and accordingly
is not covered by the prevailing wage law.
a. The structure of section 1720
The majority begins by pointing out that section 1720(a)
has eight separate categories of public works, several of which
are not in any way construction work (maj. opn., ante, at p. 12).
An example of this is subdivision (a)(4), “[t]he laying of carpet
done under a building lease-maintenance contract.” (Maj. opn.,
ante, at p. 13.) I agree laying carpet is not construction – but it is
plainly work that supports or affects a structure; it is installation
of material in a physical facility. All of the eight categories of
public works – except (on its face) section 1720(a)(2) – have that
in common: they all involve work on or relating to buildings or
other forms of physical infrastructure. I find nothing in the
structure of section 1720 that lends credence to the majority’s
belief that the Legislature intended something different in
connection with section 1720(a)(2).
5
b. The statutory language
The majority finds it “[s]ignificant to this appeal,” and
“overlooked by both parties,” that the section 1720 definition of
“public works” applies to the Labor Code’s entire chapter on
“Public Works,” and not just to the article on wages (§§ 1770-
1784). (Maj. opn., ante, at p. 14.) I do not find that “significant,”
for this appeal or otherwise.
Certainly, our interpretation of “public works” in the case
before us may be cited as precedential for the meaning of that
term in any of the statutory provisions in the chapter on “public
works.” The same is true of any case that has had or will have
occasion to construe the term “public works” in any context. But
I do not see, and the majority has not identified, any particular
implications flowing from that fact. In general, when work is
public work, it is subject both to the prevailing wage
requirements and to any other rights or protections (workers
compensation, anti-discrimination, and so on) that appear in the
other articles of the public works chapter. And when work is not
public work, it is not subject to the prevailing wage or any of the
other provisions. This does not assist me in analyzing whether
sorting recyclables in a facility owned by a sanitation district is
public work subject to any of the provisions of the “Public Works”
chapter of the Labor Code.
c. The legislative history
I agree, as I stated at the outset, that the prevailing wage
law has been expanded in coverage since the 1930’s and is no
longer limited to “employees . . . working on construction
projects.” (Maj. opn., ante, at p. 17; see pp. 15-17 & fn. 14.) But
that does not answer the question of what the Legislature meant
6
when it said “[w]ork done for . . . improvement districts” in
section 1720(a)(2).
The majority relies heavily on the legislative history of the
prevailing wage law, and principally upon a change made in 1937
from the original 1931 law. (Maj. opn., ante, at pp. 17-19.)
As the majority explains (maj. opn., ante, at p. 17), the
prevailing wage law has its origin in a 1931 statute.
Section 1720 appeared in 1937, with the enactment of the Labor
Code. The 1931 statute used the word “construction” in the
predecessor to section 1720(a)(2), stating that “[c]onstruction
work done for irrigation, utility, reclamation, improvement and
other districts, or other public agency, agencies, public officer or
body . . . shall be held to be public works within the meaning of
this act.” (Stats. 1931, ch. 397, § 4, p. 911, italics added.)
In the 1937 statute, the Legislature omitted the word
“construction” in section 1720, subdivision (b) (now
section 1720(a)(2)). The majority concludes this omission was
significant, and that the definition of “public works” in the 1937
Labor Code was not intended “to be a restatement of the
definition as it had appeared in the 1931 prevailing wage law.”
(Maj. opn., ante, at p. 18.)
I am not persuaded that the legislative history described in
the majority opinion supports the majority’s conclusion, or indeed
that it sheds any light on what the Legislature intended by the
omission of the word “construction.” The majority relies entirely
on a note from the California Code Commission Office that
proposed the 1937 Labor Code. The note explained that the
“provisions common to all [the] definitions” of “public works” that
had existed in the 1931 prevailing wage law and in four other
statutes (including a statute prohibiting the employment of
7
aliens on public works) were placed in section 1720. (Maj. opn.,
ante, at p. 19.) I do not see how this tells us anything useful
about what the Legislature intended in 1937 when the word
“construction” was omitted from what is now section 1720(a)(2).3
In short, there is really no legislative history to enlighten
us on the pertinent point. Perhaps that is why the Supreme
Court said in 2012 that, “[w]hen the California Legislature
established the Labor Code in 1937, it replaced the 1931 Public
Wage Rate Act with a revised, but substantively unchanged,
version of the same law.” (State Building & Construction Trades
Council of California v. City of Vista (2012) 54 Cal. 4th 547, 555,
italics added.) The majority discounts the Supreme Court’s
statement, because the case did not involve section 1720. (Maj.
opn., ante, at fn. 15.) Of course that is true; cases are authority
only for the points actually decided. Nonetheless, the statement
appears in the court’s introductory explanation of California’s
prevailing wage law. So, in the absence of any indication
elsewhere that the Legislature understood the 1937 act was
effecting a substantive change in the definition of “public works,”
I am inclined to believe the Supreme Court was right, and the
3 As the majority tells us, the 1931 statute prohibiting the
employment of aliens on public works (declared unconstitutional
decades later) did not use the word “construction.” It simply
provided that, for purposes of the alien employment prohibition,
“[w]ork done for irrigation, utility, reclamation, improvement and
other districts . . . shall be held to be ‘public work’ . . . .” (Stats.
1931, ch. 398, § 3, p. 914.) That same language was used in the
1937 version of section 1720(a)(2). (Maj. opn., ante, at p. 19 &
fn. 16.) The significance the majority draws from this is lost on
me.
8
1937 act was a “substantively unchanged[] version of the same
law” (ibid.) – in all respects.
I certainly agree with the majority that “[w]ork done” on its
face is broader than “construction” work. (Maj. opn., ante, at
p. 19.) But I cannot agree that the Legislature meant to broaden
the definition to “any” work or “all” work done for improvement
districts. I do not believe that in 1937 – a mere six years after
the original prevailing wage statute – the Legislature intended to
selectively extend the protections of the “Public Works” chapter
to any and all employees of those who enter contracts with
improvement districts, thus treating them differently than
employees of contractors providing services to all other agencies
of the state and its political subdivisions. In my view, construing
“[w]ork done for . . . improvement districts” to mean any work
done, as opposed to work done relating to the infrastructure of
the improvement district, would have been a radical change, for
which I would expect to find a clear statement of legislative
intent.
d. The administrative opinions and
existing authorities
That brings me to the case precedents that might assist us
in construing section 1720(a)(2). In my view, none of them tells
us very much about how to construe that provision. But what
they do say comports with my view that to be covered by
prevailing wage requirements, work must affect physical
infrastructure in one way or another.
I agree with the majority on two points.
First, I agree this court owes no particular deference to the
administrative opinions of the Department of Industrial
Relations. (Maj. opn., ante, at pp. 20-22.) At the end of the day,
9
“ ‘final responsibility for the interpretation of the law rests with
the courts.’ ” (Morris v. Williams (1967) 67 Cal. 2d 733, 748.)
That is the case here.4
Second, as the majority points out (maj. opn., ante, at
pp. 22-23), no court case has addressed the precise issue before
us. And one case tells us that section 1720(a)(2) “may apply
independently to cover some work for an improvement district
not otherwise encompassed within [section 1720(a)(1)]’s
4 That said, I do not fault the trial court for its reliance on
the Biosolids case. (See The Hauling of Biosolids from Orange
County (Apr. 21, 2006, Dept. of Industrial Relations, Pub. Works
Case No. 2005-009) [as of Nov. 30, 2018].) Indeed, I agree
with the director’s statement that “[f]inding the reach of
1720(a)(2) to be unlimited in scope would be illogical and create
prevailing wage obligations for any type of work performed under
contract for a district regardless of the nature of that work.” (Id.
at p. 4.) And I do not agree with the majority (maj. opn., ante, at
p. 21) that the department “reversed itself” in 2016, when the
director stated that the work at issue in that case was “covered
by section 1720(a)(2) because it is work done for a utility district.”
That was a different case with different work. The work in
question was “inspection and maintenance of [the contractor’s]
water quality testing and analytical equipment,” which was
“permanently attached” as a fixture to a water district’s waste
water treatment facility. (Public Works Contractor Registration
Requirement for Maintenance Work (Feb. 5, 2016, Dept. of
Industrial Relations, Pub. Works Case No. 2015-016) pp. 3, 1, 4
[as of Nov. 30, 2018].) That was work on
the infrastructure of the facility, and the director did not suggest
that all work for a utility district, no matter its nature, was
“public work.”
10
enumerated categories.” (Azusa Land Partners v. Department of
Industrial Relations (2010) 191 Cal. App. 4th 1, 21 (Azusa).) With
that I agree, as I do with the majority’s view that sections
1720(a)(1) and 1720(a)(2) have “equal dignity.” (Maj. opn., ante,
at p. 23.)
But Azusa refers to “some” work – not “any” or “all” work.
I do not think Azusa can be stretched to indicate support for the
broader proposition that any or all work done for an improvement
district is public work. On the contrary, Azusa specifically speaks
of “infrastructure work.” Azusa says: “Although the type of
governmental entity for whom the infrastructure work may be
performed under [section 1720(a)(2)] is more limited than the
entities for whom work may be done under [section 1720(a)(1)],
the range of tasks covered by [section 1720](a)(2) is broader.”
(Azusa, supra, 191 Cal.App.4th at p. 20, italics added.) I agree
the range of tasks is broader, but it is not infinite. I believe it is
limited as the prevailing wage law has always been limited: to
work on or supporting or affecting infrastructure.
As Azusa states, the plaintiff there was “correct that . . .
‘[section 1720](a)(2) must be given meaning separate and apart
from [section] 1720(a)(1).’ Nevertheless, the fact that some
infrastructure is encompassed by more than one
subdivision does not negate the viability of either one or the
possibility that, in another case, other improvements would be
considered public work under one provision, but not both.”
(Azusa, supra, 191 Cal.App.4th at p. 22, italics in original,
boldface added.)
In sum, I do not see any suggestion in Azusa that any and
all work done for an improvement district constitutes “public
works.” On the contrary, Azusa characterizes the “work” that
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may be performed under section 1720(a)(2) as “infrastructure
work” and says only that section 1720(a)(2) “may apply
independently to cover some work” not otherwise encompassed in
section 1720(a)(1). (Azusa, supra, 191 Cal.App.4th at pp. 20, 21,
italics added.) It is apparent to me that the court’s reference to
“some work” was a reference to infrastructure work of some kind
– not to any and all work done for an improvement district.
In the end, both the majority and I can pluck out specific
language from Azusa, a complex case arising in a wholly different
context,5 or from other cases on other topics, to support one point
or another.6 But I think one general point is important, and that
5 Azusa involved whether the proceeds of certain bonds, paid
by an improvement district to a private developer for the
construction of public improvements, were “public funds,” and if
so whether “all construction of public improvements required as a
condition of regulatory approval [was] subject to prevailing wage
law, including public infrastructure constructed at private
expense.” (Azusa, supra, 191 Cal.App.4th at pp. 13-14, 22-23.)
Azusa addressed and rejected the developer’s contention that,
under section 1720(a)(2), the developer was subject to prevailing
wage requirements only as to public improvement work actually
performed for and paid for by the improvement district, and that
section 1720(a)(1) was unnecessary to the analysis of whether the
entire project was a public work. (Azusa, at p. 19.)
6 Plaintiffs cite general statements from other cases that
likewise do not advance their position that all work of any kind is
covered by section 1720(a)(2). They quote Reclamation Dist.
No. 684 v. Department of Industrial Relations (2005)
125 Cal. App. 4th 1000, where the court said the “general rule is
that any work done for a reclamation district is ‘public work’ and
that maintenance work is included.” (Id. at p. 1006.) The court
held that maintenance work done on a levee to protect an island
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is where the Azusa court “reject[ed] [the plaintiff developer’s]
invitation to parse the language of subdivision (a)(2) in isolation,
disregarding the other subdivisions of section 1720 and the
context of the overall statutory scheme to which it belongs.”
(Azusa, supra, 191 Cal.App.4th at p. 22, italics added.)
It is the italicized point I find to be most pertinent to the
resolution of this case. If viewed in complete isolation, one might
conclude that “[w]ork done for . . . improvement districts” is, as
plaintiffs contend and as the majority holds, unqualified and
unlimited in scope. But controlling authorities on statutory
construction do not permit us to read one provision of a statute in
isolation from the others, and in isolation from “the context of the
overall statutory scheme to which it belongs.” (Azusa, supra,
191 Cal.App.4th at p. 22.) The Supreme Court directs us to
from flooding was a public works project subject to the prevailing
wage law, and that the exception in section 1720(a)(2) – for the
operation of an irrigation or drainage system – did not apply,
because the levee operated to prevent flooding, not to irrigate or
drain the land. (Reclamation Dist., at pp. 1002, 1006.) Again,
the work at issue was work on infrastructure, and the case does
not support any broader proposition. The same is true of Reliable
Tree Experts v. Baker (2011) 200 Cal. App. 4th 785, 788, where the
court held that the plaintiff’s contract with the Department of
Transportation for tree pruning and removal along state
highways was subject to the prevailing wage law because it was
maintenance work under section 1771. The case did not involve
section 1720(a)(2). The court merely observed that the scope of
the law was “not to be ascertained solely from the words of
[section 1720(a)(1)],” and noted, citing Azusa, that “[i]n certain
ways, the scope of subdivision (a)(2) is broader than that of
subdivision (a)(1).” (Reliable Tree Experts, at p. 795 & fn. 8.)
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construe the words of a statutory provision “ ‘ “ ‘ “with reference
to the entire scheme of law of which it is part so that the whole
may be harmonized and retain effectiveness.” ’ ” ’ ” (Pineda,
supra, 51 Cal.4th at p. 530; City of Huntington Beach v. Board of
Administration (1992) 4 Cal. 4th 462, 468 [“all parts of a statute
should be read together and construed in a manner that gives
effect to each, yet does not lead to disharmony with the others”].)
Adhering to that directive, I cannot embrace a construction
of section 1720(a)(2) that is untethered to the decades-long
history during which prevailing wage requirements have been
applied to various kinds of work involving or affecting physical
facilities or infrastructure – but never, until now, to the routine
operations that may be performed inside but not affecting those
facilities. I see no evidence the Legislature intended that all
work done for improvement districts, without limitation – unlike
that for all other public agencies – was to be compensated at
prevailing wage rates, and I can think of no reason justifying
such an anomalous result.
GRIMES, J.
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