The superior court erred in applying Bearden, supra, 138 Cal.App.4th 429, which held the IWC had exceeded its statutory authority in adopting the exemption for union-represented employees contained in wage order 16, section 10(E), but gave its decision prospective effect only. The failure of an employer to provide second meal periods as required by section 512, subdivision (a), and wage order 16, section 10(B), is subject to an award of premium pay as specified in section 226.7. Accordingly, we grant the petition for writ of mandate filed by Lazarin, Quamina and Skinner and direct the court to vacate its order of February 11, 2010 granting TWI‟s motion for summary adjudication as to the fifth cause of action and to enter a new and different order denying that motion.See Slip Opinion, at 3.
According to the Court, invalidation of section 10(E) does not insulate an employer for the time period prior to the invalidation of the provision. The Court based this finding on the fact the Wage Order 16 contained a severability clause (section 19), causing section 10(E) to be surgically excised, leaving section 10(A) and (B) in place. See id., at 19-20. Moreover, the Court distinguished Bearden’s finding that its opinion could only have prospective application based in large part on the fact the Bearden was decided prior to Kenneth Cole when the additional hour of pay required by section 226.7 was viewed as a penalty (as opposed to a premium wage). See id., at 22-25.