A California Court of Appeal has ruled that employees have no recovery for inadvertent violations of California’s accurate-paystub law (Labor Code Section 226).  Rather, the employer is liable only if actual injury to the employee results from knowing and intentional misstatements on the paystub, so there is no liability as here for a multiplying cascade of penalties when an outside payroll service has simply misstated, and later corrected, an applicable mileage rate on pay stubs.  The California Court of Appeal also holds that the employer in this case has no liability for missed meal periods, because the employer’s responsibility is to provide meal periods, but not to ensure that the employee actually chooses to take them in every instance.  Similarly, the daily 10-minute rest period per 4 hours worked must be made available but there is no employer liability where the employee does not take available rest periods.  The no-liability ruling on available meal and break time not used by the employee reinforces another recent court of appeal case to the same effect (Brinker, reported in our memo of August 12, 2008) for which the California Supreme Court has granted review.  While we do not consider the Supreme Court review to be a favorable omen for employers, this new court of appeals decision (also consistent with various federal district court decisions) can only help, and we will report the state Supreme Court resolution of the issue as soon as available.  (Brinkley v. Public Storage, Inc., California Court of Appeal No. B200513, October 28, 2008)

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