Filed 11/25/15; pub. order 12/17/15 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

NATHAN FLOWERS,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B256744

 (Los Angeles County

 Super. Ct. No. BC515136)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elihu 

M. Berle, Judge. Affirmed in part and reversed in part.

The Tidrick Law Firm, Steven G. Tidrick and Joel B. Young for Plaintiff and 

Appellant.

Jones Day, Erica L. Reilley, Cindi Ritchey, and Charlotte Wasserstein; Mark J. 

Saladino, County Counsel, Charles M. Safer, Assistant County Counsel, and Ronald W. 

Stamm, Deputy County Counsel for Defendant and Respondent.
2

This appeal concerns overlapping provisions of the Labor Code, the Public 

Utilities Code (PUC), and an Industrial Welfare Commission (IWC) wage order 

governing the wages, hours, and working conditions of transit operators employed by the 

Los Angeles Metropolitan Transportation Authority (MTA). The issues presented are (1) 

whether PUC sections 30257 and 30750 exempt the MTA from minimum wage and rest 

period requirements imposed by the Labor Code and by IWC Order No. 9-2001 (Cal.

Code Regs., tit. 8, § 11090) (wage order 9), and (2) if the MTA is subject to the

provisions of wage order 9, whether the terms of the wage order itself exempt MTA 

transit operators from the rest period requirements.

We hold that PUC sections 30257 and 30750 do not exempt the MTA from rest 

period and minimum wage requirements, but that the rest period requirements do not 

apply to the MTA operators who are the putative plaintiffs in this action.

BACKGROUND

The MTA is a public entity created pursuant to the County Transportation 

Commissions Act. (Pub. Util. Code, §§ 130000, 130050.2.) Among other services, the 

MTA operates a public transportation system, including bus and rail transit systems.

Plaintiff Nathan Flowers (plaintiff) is a former MTA employee who worked as a 

bus driver. Plaintiff’s employment with the MTA was governed by a collective 

bargaining agreement (CBA).

After plaintiff’s employment with the MTA ended, he filed a class action 

complaint against the MTA on behalf of a putative class of current and former bus and 

train operators employed by the MTA since July 15, 2010. The operative amended 

complaint alleges four causes of action: (1) failure to pay minimum wage and overtime 

compensation in violation of the federal Fair Labor Standards Act (29 U.S.C. § 201) 

(FLSA); (2) failure to pay minimum wage in violation of Labor Code section 1194 and 

wage order 9; (3) civil penalties pursuant to the California Labor Code Private Attorney 

General Act (PAGA); and (4) failure to provide rest periods or to pay premiums for 

missed rest periods under Labor Code section 226.7 and wage order 9.
3

The MTA demurred to all causes of action and filed a petition to compel 

arbitration of certain of the claims. The trial court sustained the demurrer, without leave 

to amend, as to the second cause of action for violation of state minimum wage

requirements, the third cause of action for violation of PAGA, and the fourth cause of 

action for violation of rest period requirements. The court overruled the demurrer with 

respect to the FLSA claim and denied the petition to compel arbitration.

Plaintiff voluntarily dismissed the FLSA claim without prejudice, and a judgment 

of dismissal was entered in favor of the MTA. This appeal followed.

THE PARTIES’ CONTENTIONS

Plaintiff contends his amended complaint states a claim for violation of minimum 

wage and rest period requirements imposed by the Labor Code and wage order 9 and for 

civil penalties under PAGA. The MTA argues that two provisions of the Southern 

California Rapid Transit District Law1-- PUC sections 30257 and 30750 -- immunize it 

from the wage and rest period requirements, and that plaintiff’s derivative PAGA claim 

fails for the same reason.

DISCUSSION

I. General legal principles and standard of review

The parties’ contentions raise issues concerning interpretation of the Labor Code, 

the PUC, and wage order 9. The ordinary principles of statutory interpretation apply. 

(Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 43 [wage orders are 

construed in accordance with the principles of statutory interpretation].) Under those 

principles, our analysis begins by ascertaining the legislative intent underlying the statute 

“so that we may adopt the construction that best effectuates the purpose of the law. 

[Citation.]” (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715.) To 

do so, we first examine the words of the statute as the best indication of legislative intent. 

 

1 The Southern California Rapid Transit District Law governs the MTA as the 

successor agency to the Southern California Rapid Transit District and sets forth the 

powers and functions of the MTA. (See Pub. Util. Code, §§ 30001, 30500-30756.)
4

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026 (Brinker).) 

Those words are given their ordinary and usual meaning and are construed in their 

statutory context. (Hassan, supra, at p. 715.) Judicial construction that renders any part 

of the statute meaningless or inoperative should be avoided. (Ibid.)

If the language of the statute is clear, it is applied without further inquiry. 

(Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556, 568.) If the language can be 

interpreted to have more than one reasonable meaning, a court may consider “‘a variety 

of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, 

the legislative history, public policy, contemporaneous administrative construction, and 

the statutory scheme of which the statute is a part.’ [Citation.]” (Id. at pp. 568-569.)

An appellate court reviews a trial court’s sustaining of a demurrer de novo, 

exercising its independent judgment as to whether a cause of action has been stated as a 

matter of law. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 

784, 790.) “The reviewing court gives the complaint a reasonable interpretation, and 

treats the demurrer as admitting all material facts properly pleaded. [Citations.] The 

court does not, however, assume the truth of contentions, deductions or conclusions of 

law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of 

demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to 

sustain a demurrer when the plaintiff has stated a cause of action under any possible legal 

theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to 

amend if the plaintiff shows there is a reasonable possibility any defect identified by the 

defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. 

(1992) 2 Cal.4th 962, 966-967.)

II. Legal framework

A. Labor Code provisions

1. Labor Code section 1194 minimum wage requirements

Labor Code section 1194 accords an employee a statutory right to recover unpaid 

wages from an employer who fails to pay the minimum wage. (Road Sprinkler Fitters 

Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 778.) 
5

The statute provides in relevant part: “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.” (Lab. Code, 

§ 1194, subd. (a).)

Labor Code section 1194 does not define the employment relationship nor does it 

specify who may be liable for unpaid wages. Specific employers and employees become 

subject to the minimum wage requirements only through and under the terms of wage 

orders promulgated by the IWC, the agency formerly authorized to regulate working 

conditions in California.2 (Martinez v. Combs (2010) 49 Cal.4th 35, 54-55.) 

Accordingly, “an employee who sues to recover unpaid minimum wages actually and 

necessarily sues to enforce the wage order.” (Id. at pp. 56-57.)

2. Labor Code section 226.7 rest period requirements and exemption

Labor Code section 226.7 prohibits an employer from requiring an employee to 

work during a rest period that is required by an applicable statute, regulation, or IWC 

wage order, unless the employer pays the employee one additional hour of regular pay for 

each workday on which a rest period is missed. (Lab. Code, § 226.7, subds. (b), (c).)3 

 

2 Although the IWC was defunded in 2004, its wage orders remain in effect. 

(Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 145, fn. 1.)

3 Labor Code section 226.7, subdivisions (b) and (c) state: “(b) An employer shall 

not require an employee to work during a meal or rest or recovery period mandated 

pursuant to an applicable statute, or applicable regulation, standard, or order of the 

Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or 

the Division of Occupational Safety and Health. [¶] (c) If an employer fails to provide 

an employee a meal or rest or recovery period in accordance with a state law, including, 

but not limited to, an applicable statute or applicable regulation, standard, or order of the 

Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or 

the Division of Occupational Safety and Health, 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.”
6

Section 226.7, subdivision (e) states that the rest period requirements do not apply, 

however, “to an employee who is exempt from meal or rest or recovery period 

requirements pursuant to other state laws, including, but not limited to, a statute or 

regulation, standard, or order of the Industrial Welfare Commission.” (Lab. Code, 

§ 226.7, subd. (e).)

3. Labor Code section 512.5 rest period exemption

Labor Code section 512.5 authorizes the IWC to exempt from rest period 

requirements public transit operators who are covered by a collective bargaining 

agreement. Subdivision (a) of section 512.5 provides in relevant part: “[I]f the Industrial 

Welfare Commission adopts or amends an order that applies to an employee of a public 

agency who operates a commercial motor vehicle, it may exempt that employee from the 

application of the provisions of that order which relate to meal periods or rest periods, 

consistent with the health and welfare of that employee, if he or she is covered by a valid 

collective bargaining agreement.” (Lab. Code, § 512.5, subd. (a).)

B. Wage order 9

“Nearly a century ago, the Legislature responded to the problem of inadequate 

wages and poor working conditions by establishing the IWC and delegating 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. [Citations.] 

Pursuant to its ‘broad statutory authority’ [citation], the IWC in 1916 began issuing 

industry- and occupation-wide wage orders specifying minimum requirements with 

respect to wages, hours, and working conditions [citation].” (Brinker, supra, 53 Cal.4th

at p. 1026.)
7

The wage order applicable in this case, wage order 9, effective July 1, 2004, as 

amended, governs employers and employees in the transportation industry. Section 4 of 

wage order 9 imposes minimum wage requirements4 and section 12 imposes rest period 

requirements.

5

 

4 Section 4 of wage order 9, effective July 1, 2004, provides as follows:

“4. MINIMUM WAGES

“(A) Every employer shall pay to each employee wages not less than seven 

dollars and fifty cents ($7.50) per hour for all hours worked, effective January 1, 2007, 

and not less than eight dollars ($8.00) per hour for all hours worked, effective January 1, 

2008, except:

“LEARNERS: Employees during their first 160 hours of employment in 

occupations in which they have no previous similar or related experience, may be paid 

not less than 85 percent of the minimum wage rounded to the nearest nickel.

“(B) Every employer shall pay to each employee, on the established payday for 

the period involved, not less than the applicable minimum wage for all hours worked in 

the payroll period, whether the remuneration is measured by time, piece, commission, or 

otherwise.

“(C) When an employee works a split shift, one (1) hour’s pay at the minimum 

wage shall be paid in addition to the minimum wage for that workday, except when the 

employee resides at the place of employment.

“(D) The provisions of this section shall not apply to apprentices regularly 

indentured under the State Division of Apprenticeship Standards.”

5 Section 12 of wage order 9 states:

“12. REST PERIODS

“(A) Every employer shall authorize and permit all employees to take rest 

periods, which insofar as practicable shall be in the middle of each work period. The 

authorized rest period time shall be based on the total hours worked daily at the rate of 

ten (10) minutes net rest time per four (4) hours or major faction thereof. However, a rest 

period need not be authorized for employees whose total daily work time is less than 

three and one-half (3 1⁄2) hours. Authorized rest period time shall be counted as hours 

worked for which there shall be no deduction from wages.

“(B) If an employer fails to provide an employee a rest period in accordance with 

the applicable provisions of this order, the employer shall pay the employee one (1) hour 

of pay at the employee’s regular rate of compensation for each workday that the rest 

period is not provided.

“(C) This section shall not apply to any public transit bus driver covered by a 

valid collective bargaining agreement if the agreement expressly provides for rest periods 

for those employees, final and binding arbitration of disputes concerning application of 
8

Prior to January 1, 2001, wage order 9 did not apply to public employees. A 2001 

amendment changed this by making certain enumerated sections of the wage order 

applicable to government employees. Among the enumerated sections now applicable to 

public employees is section 4, the minimum wage provision. A further amendment in 

2004 made meal period and rest period requirements in sections 11 and 12 of the wage 

order applicable to public transit drivers, except for those covered by a collective 

bargaining agreement containing certain specified terms. The 2001 and 2004 

amendments revised sections 1(B) and 12(C) of wage order 9.

Section 1(B) states in relevant part:

“1. APPLICABILITY OF ORDER

“This order shall apply to all persons employed in the transportation 

industry whether paid on a time, piece rate, commission, or other basis, 

except that:

“[¶] . . . [¶]

“(B) Except as provided in Sections 1, 2, 4, 10, and 20, and with 

regard to commercial drivers, Sections 11, and 12, the provisions of this 

order shall not apply to any employees directly employed by the State or 

any political subdivision thereof, including any city, county, or special 

district. The applications of Sections 11 and 12 for commercial drivers 

employed by governmental entities shall become effective July 1, 2004 or 

following the expiration date of any valid collective bargaining agreement 

applicable to such commercial drivers then in effect but, in any event, no 

later than August 1, 2005. Notwithstanding Section 21, the application of 

Sections 11 and 12 to public transit bus drivers shall be null and void in the 

event the IWC or any court of competent jurisdiction invalidates the 

collective bargaining exemption established by Sections 11 or 12 for those 

drivers.”

Section 12(C) of wage order 9 states:

“This section [governing rest periods] shall not apply to any public 

transit bus driver covered by a valid collective bargaining agreement if the 

 

its rest period provisions, premium wage rates for all overtime hours worked, and regular 

hourly rate of pay of not less than 30 percent more than the State minimum wage rate.”
9

agreement expressly provides for rest periods for those employees, final 

and binding arbitration of disputes concerning application of its rest period 

provisions, premium wage rates for overtime hours worked, and regular 

hourly rate of pay of not less than 30 percent more than the State minimum 

wage rate.”

C. PUC sections 30257 and 30750

Besides delegating to the IWC the authority to regulate wages, hours, and working 

conditions of transit workers, the Legislature has delegated to the MTA, in PUC section 

30257, the authority to “adopt a personnel system for the purpose of recruiting and 

maintaining an effective working force with good morale,” to create job positions, and to 

establish salaries and benefits for those positions. (Pub. Util. Code, § 30257.) The 

MTA’s authority to do so is circumscribed, however, by the collective bargaining rights 

of its employees. PUC section 30257 states that the MTA may “determine and create 

such number and character of positions as are necessary properly to carry on the 

functions of the district” and “establish an appropriate salary, salary range, or wage for 

each position so created, except for positions in a bargaining unit represented by a labor 

organization.” (Pub. Util. Code, § 30257, italics added.)

The Legislature has accorded MTA employees extensive collective bargaining 

rights. PUC section 30750, subdivision (a) provides that if a majority of employees 

indicates a desire to be represented by a labor organization, the MTA and the 

representative organization must “bargain in good faith and make all reasonable efforts to 

reach agreement on the terms of a written contract governing wages, hours, and working 

conditions.” (Pub. Util. Code, § 30257, subd. (a).) Subdivision (c) of PUC section 30750 

states that the MTA’s duty to bargain in good faith, and to enter into and comply with the 

terms of a collective bargaining agreement, shall not be restricted by other laws: “The 

obligation of the [MTA] to bargain in good faith with a duly designated or certified labor 

organization and to execute a written collective bargaining agreement with that labor 

organization covering the wages, hours, and working conditions of the employees . . . and 
10

to comply with the terms of that collective bargaining agreement, shall not be limited or 

restricted by any other provision of law.” (Pub. Util. Code, § 30750, subd. (c).)6

III. Minimum wage requirements

A. The minimum wage requirements of wage order 9 apply to the MTA

The plain language of wage order 9 imposes minimum wage requirements on the 

MTA. Section 1 of the wage order states that its provisions “shall apply to all persons 

employed in the transportation industry.” Section 1(B) of wage order 9 makes employees 

of “the State or any political subdivision thereof, including any city, county or special 

district” expressly subject to the minimum wage requirements set forth in section 4. 

Section 4 of the wage order requires “[e]very employer” to pay a specified minimum 

wage to its employees. Wage order 9 contains no exception from the minimum wage 

requirements for public entity employers such as the MTA. The minimum wage 

requirements accordingly apply to the MTA and its employees, unless another statutory 

exemption applies.

B. PUC sections 30257 and 30750 do not exempt the MTA from minimum wage 

and rest period requirements

The MTA contends that PUC sections 30257 and 30750 exempt it from the

minimum wage and rest period requirements imposed by the Labor Code and by wage 

 

6 Subdivision (c) of PUC section 30750 in its entirety states: “The obligation of the 

district to bargain in good faith with a duly designated or certified labor organization and 

to execute a written collective bargaining agreement with that labor organization 

covering the wages, hours, and working conditions of the employees represented by that 

labor organization in an appropriate unit, and to comply with the terms of that collective 

bargaining agreement, shall not be limited or restricted by any other provision of law. 

The obligation of the district to bargain collectively shall extend to all subjects of 

collective bargaining, including, but not limited to, retroactive pay increases. 

Notwithstanding any other provision of law, the district shall make deductions from the 

wages and salaries of its employees, upon receipt of authorization to make those 

deductions, for the payment of union dues, fees, or assessments, for the payment of 

contributions pursuant to any health and welfare plan or pension plan, or for any other 

purpose for which deductions may be authorized by employees where the deductions are 

pursuant to a collective bargaining agreement with a duly designated or certified labor 

organization.”
11

order 9. The MTA argues that those statutes accord it and a duly designated labor 

organization the sole and exclusive authority to determine the wages and working 

conditions of MTA employees through the collective bargaining process and preclude 

challenges to this authority based on “any other provision of law.”

1. The plain language of the statutes provides no exemption

The plain language of PUC section 30257 does not support the MTA’s position. 

Section 30257 simply states that the MTA “shall establish an appropriate salary, salary 

range, or wage” for positions it creates “except for positions in a bargaining unit 

represented by a labor organization.” (Pub. Util. Code, § 30257.) The statute does not 

exempt the MTA from state minimum wage requirements, nor does it accord the MTA 

sole and exclusive authority or discretion to determine what constitutes an “appropriate” 

wage for positions established by its board. Rather, it circumscribes the MTA’s authority 

by precluding it from establishing salaries or wages for “positions in a bargaining unit 

represented by a labor organization.”

PUC section 30750 also contains no exception from state minimum wage 

requirements. The plain language of that statute states that the MTA’s obligation to 

bargain in good faith with a duly designated labor organization, to execute a collective 

bargaining agreement, and to comply with the terms of such an agreement shall not be 

limited or restricted by any other provision of law. The MTA fails to explain how

complying with the state minimum wage law would limit or restrict its obligation to 

perform any of the tasks specified in PUC section 30750, subdivision (c).

The MTA argues, without explanation, that complying with state minimum wage 

requirements would restrict its ability to execute a collective bargaining agreement 

covering the wages, hours, and working conditions of its employees and to comply with 

the terms of such an agreement. That argument is presumably based on the assumption 

that a collective bargaining agreement could provide for employee compensation at a rate 

less than the applicable minimum wage. But Labor Code section 1194 prohibits such an 

agreement by according employees the right to recover the unpaid balance of the 
12

applicable legal minimum wage “[n]otwithstanding any agreement to work for a lesser 

wage.” (Lab. Code, § 1194.)

The absence of an express exemption from the applicable minimum wage 

requirements in the PUC sections on which the MTA relies may be contrasted with 

express exemptions accorded to public employees in other statutes. Labor Code section 

512.5, subdivision (a) creates such an exemption for public transit operators: 

“Notwithstanding any provision of this chapter, if the Industrial Welfare Commission 

adopts or amends an order that applies to an employee of a public agency who operates a 

commercial motor vehicle, it may exempt that employee from the application of the 

provisions of that order which relate to meal periods or rest periods, consistent with the 

health and welfare of that employee, if he or she is covered by a valid collective 

bargaining agreement.” The Legislature has demonstrated that it knows how to create an 

exemption from the provisions of an IWC wage order when it intends to do so. There is 

no exemption from the minimum wage provisions of wage order 9 in PUC section 30750, 

subdivision (c), and the MTA has presented no valid basis for inferring such an 

exemption. (See, e.g., Plastic Pipe & Fittings Assn. v. California Building Standards 

Com. (2004) 124 Cal.App.4th 1390, 1413 [absent an express statutory exemption, court 

cannot infer exemption from statutory requirements unless it discerns a clear legislative 

intent to provide an exemption].)

2. Grier v. Alameda-Contra Costa Transit Dist. does not compel a 

different result

The MTA cites Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 

Cal.App.3d 325 (Grier) as support for its argument that PUC section 30750 evidences the 

Legislature’s intent that labor relations between the MTA and its employees be governed 

exclusively by the PUC, thereby exempting the MTA from minimum wage and rest 

period requirements imposed by the Labor Code and wage order 9.

The plaintiffs in Grier were bus drivers employed by the Alameda-Contra Costa 

Transit District (Alameda District) who sued the Alameda District for violating Labor 

Code section 2928, which limits an employer’s ability to deduct wages as a penalty for 
13

employee tardiness. (Grier, supra, 55 Cal.App.3d at p. 328.) The plaintiffs’ employment 

was governed by a collective bargaining agreement that contained provisions governing 

tardiness for work. (Id. at p. 329.)

The Alameda District argued that it was exempt from Labor Code section 2928 

because its labor relations were governed exclusively by the PUC and by applicable rules 

and regulations adopted by its board. (Grier, supra, 55 Cal.App.3d at p. 331.) The court 

in Grier rejected that argument, noting that “[t]he most salient point” against the 

Alameda District’s position was the fact that the PUC section applicable to the Alameda 

District did not contain exclusionary language similar to that contained in section 30750, 

subdivision (c). That statute as then in effect stated that “‘[t]he obligation of the district 

to bargain in good faith with a duly designated or certified labor organization and to 

execute a written collective bargaining agreement with such labor organization covering 

the wages, hours, and working conditions of the employees represented by such labor 

organization in an appropriate unit, and to comply with the terms thereof shall not be 

limited or restricted by the provisions of the Government Code or other laws or 

statutes. . . .’”7 (Id. at p. 332.) Noting that “[t]he Legislature plainly thought it necessary 

to include the express language negating other statutory restrictions” in the provisions 

governing the Southern California transit districts, the court in Grier determined that the 

absence of such express language in the provisions governing the Alameda District 

“indicates that a different meaning was intended.” (Ibid.) The court then concluded: 

“[I]t does not appear that the Legislature intended Alameda-Contra Costa County Transit 

District labor relations to be governed only by the Public Utility Code provisions relating 

thereto. Rather, the rules and regulations adopted by the board of directors . . . including 

those adopted by a resolution approving a collective bargaining agreement, must 

 

7 Subdivision (c) of PUC section 30750 was amended in 2004 to state that the 

district’s obligation to bargain in good faith with a duly designated or certified labor 

organization, to execute a written collective bargaining agreement, and to comply with 

the terms of the collective bargaining agreement “shall not be limited or restricted by any 

other provision of law.” (Stats. 2004, ch. 788, § 20.)
14

themselves be promulgated subject to the limitations and restrictions of other applicable 

laws.” (Id. at p. 333.)

We note at the outset that Grier concerned the interpretation of the PUC 

provisions applicable to the Alameda-Contra Costa County Transit District, and not 

section 30750. The court in Grier considered PUC section 30750, subdivision (c) only in 

comparison to the Alameda Transit District statutes at issue in that case. We disagree 

with any suggestion by the court in Grier that PUC section 30750, subdivision (c), 

evidences an intent by the Legislature that labor relations between the MTA and its 

employees be governed exclusively by the PUC, or that the MTA and its employees are 

not subject to state minimum wage requirements.

3. Statutory interpretation principles and public policy support 

application of the minimum wage

The MTA’s interpretation of PUC section 30750, subdivision (c) is not only 

unsupported by the plain language of that statute, it conflicts with the express terms of 

wage order 9, which, subject to exceptions not applicable here, applies to “all persons 

employed in the transportation industry,” including “employees directly employed by the 

State or any political subdivision thereof, including any city, county, or special district” 

and “commercial drivers employed by governmental entities.” Under the applicable 

principles of statutory interpretation, potentially conflicting statutory provisions should 

be interpreted to harmonize and reconcile their respective elements so as to carry out the 

overriding legislative purpose of the statutory scheme as a whole. (Russell v. Stanford 

University Hospital (1997) 15 Cal.4th 783, 789.) Applying this principle here, it is 

possible for the MTA to comply with the minimum wage law and to meet its obligations 

to bargain in good faith with a duly designated labor organization and to execute a 

collective bargaining agreement and comply with its terms.

Our interpretation of the relevant statutory provisions is consistent with federal

and California labor law, and with the public policy underpinnings of those laws. Under 

both federal and California law, employees may not agree to waive their entitlement to 

the minimum wage (Lab. Code, §§ 1194, 219; Barrentine v. Arkansas-Best Freight Sys.
15

(1981) 450 U.S. 728, 740-741), nor may a collective bargaining agreement waive that 

right. (Gordon v. City of Oakland (9th Cir. 2010) 627 F.3d 1092, 1095.) “State wage 

and hour laws ‘reflect the strong public policy favoring protection of workers’ general 

welfare and “society’s interest in a stable job market.” [Citations.]’ [Citations.]” (Cash 

v. Winn (2012) 205 Cal.App.4th 1285, 1297.) They are therefore liberally construed in 

favor of protecting workers. Our Supreme Court has stated that, “‘[I]n light of the 

remedial nature of the legislative enactments authorizing the regulation of wages, hours 

and working conditions for the protection and benefit of employees, the statutory 

provisions are to be liberally construed with an eye to promoting such protection.’ 

[Citations.]” (Brinker, supra, 53 Cal.4th at pp. 1026-1027.) Both the statutory 

framework and its underlying public policy support application of the minimum wage in 

this case.

PUC sections 30257 and 30750, subdivision (c) do not exempt the MTA as a 

matter of law from minimum wage requirements imposed by the Labor Code and wage 

order 9. The trial court erred by sustaining the demurrer to plaintiff’s second cause of 

action for violation of the state minimum wage law on that basis.

IV. Rest period requirements

A. Rest period exemption under section 12(C) of wage order 9

Section 12(C) of wage order 9 states that rest period requirements do not apply to 

public transit bus drivers covered by a valid collective bargaining agreement if the 

agreement provides for (1) rest periods for those employees, (2) final and binding 

arbitration of disputes concerning application of its rest period provisions, (3) “premium 

wage rates for all overtime hours worked,” and (4) “regular hourly rate of pay of not less 

than 30 percent more than the State minimum wage.”

Plaintiff concedes that the MTA and its employees have entered into a valid 

collective bargaining agreement that satisfies all but the third required element for the 

rest break exemption accorded by section 12(C) of wage order 9 -- premium wage rates 

for all overtime hours worked. Plaintiff contends that the rest period exemption does not 

apply because the collective bargaining agreement does not provide premium wage rates 
16

for “all overtime hours worked” by MTA bus and train operators. Whether the 

exemption accorded by section 12(C) of wage order 9 applies requires an examination of 

overtime compensation requirements in the collective bargaining agreement and under 

applicable law.

B. Overtime compensation under federal and California law

Both federal and California law govern the payment of overtime compensation. 

(See 29 U.S.C. § 207; Lab. Code, § 510 et seq.) The FLSA requires overtime pay only if 

an employee works more than 40 hours per week, regardless of the number of hours 

worked during any one day. (29 U.S.C. § 207(a)(1).) California law, codified at Labor 

Code section 510, is more stringent and requires overtime compensation for “[a]ny work 

in excess of eight hours in one workday and any work in excess of 40 hours in any one 

workweek.” (Lab. Code, § 510, subd. (a), italics added.)

Labor Code section 514 exempts from the overtime pay requirements of section 

510 any employee covered by a valid collective bargaining agreement that provides 

“premium wage rates for all overtime hours worked” and a regular hourly rate of pay of 

not less than 30 percent more than the state minimum wage. (Lab. Code, § 514.)

8

C. Overtime provisions in the collective bargaining agreement

The MTA’s collective bargaining agreement defines overtime as work performed 

by operators “in excess of eight (8) hours per day, except as provided elsewhere in this 

Contract.” The collective bargaining agreement further states that “[a]ll hours worked in 

excess of forty (40) hours in a work week shall be subject to the provisions of the Fair 

Labor Standards Act (FLSA).”

The collective bargaining agreement excepts from the definition of overtime 

certain tasks that are compensated at a regular pay rate, even if performance of those 

tasks causes an operator’s hours to exceed eight hours in one day or 40 hours in one 

 

8 The conditions for the overtime exemption accorded by Labor Code section 514 

are identical to two of the required elements for the rest period exemption accorded by 

section 12(C) of wage order 9.
17

week. These tasks include “making out accident reports,” “making a required 

miscellaneous report,” “completing a required Operators’ Daily Log,” “tak[ing] physical 

re-examinations on off days or off hours,” and attending “Verification of Transit 

Training.”

Plaintiff contends the foregoing tasks constitute compensable work time under 

wage order 9, which defines “hours worked” 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,” and must be compensated at the 

premium wage rate if their performance causes an operator’s hours worked to exceed 

eight hours in one day or 40 hours in one week. Plaintiff further contends that because 

the collective bargaining agreement fails to do so, it does not meet the requirements for 

the rest period exemption accorded by section 12(C) of wage order 9.

The MTA argues that the parties may contractually agree, through the collective 

bargaining process, to exclude the specified tasks from the definition of “overtime hours 

worked.” The MTA maintains that the definition set forth in the collective bargaining 

agreement, and not the statutory definition, should be applied in the instant case.

We previously considered this issue in Vranish v. Exxon Mobil Corp. (2014) 223 

Cal.App.4th 103 (Vranish).

D. Vranish

The plaintiffs in Vranish were employees whose employment was governed by a 

valid collective bargaining agreement. Consistent with the terms of that agreement, the 

plaintiffs worked a regularly scheduled workweek that required them to work more than 

eight hours in a 24-hour period. The collective bargaining agreement provided for 

overtime pay for hours worked in excess of 40 hours in a workweek or 12 hours in a 

workday, and plaintiffs were compensated for all overtime worked in accordance with the 

terms of the agreement. The plaintiffs sued the employer, arguing that their collective 

bargaining agreement did not satisfy the Labor Code section 514 requirement of 

providing premium wages for all overtime hours worked because they were not paid 

overtime compensation until they worked more than 12 hours in a single workday rather 
18

than the eight hours prescribed by Labor Code section 510. (Vranish, supra, 223 

Cal.App.4th at pp. 106-107.)

We concluded that the plain language of Labor Code section 514 did not support 

the plaintiffs’ argument that the phrase “all overtime hours worked” as used in that statute 

necessarily incorporated the definition of overtime in Labor Code section 510, 

subdivision (a), i.e., “[a]ny work in excess of eight hours in workday and any work in 

excess of 40 hours in any one workweek,” and that section 514 only required the 

employer to pay a premium wage for overtime worked as defined in the parties’ 

collective bargaining agreement. (Vranish, supra, 223 Cal.App.4th at p. 110.) We found 

support for that conclusion in the legislative history of Labor Code section 514, in an 

opinion from the Department of Industrial Relations, Division of Labor Standards 

Enforcement, and in the public policy underlying the statute. (Id. at pp. 110-112.)

Vranish is controlling authority with regard to the issue presented here. The MTA 

is only required to pay a premium for overtime worked as defined in the parties’ 

collective bargaining agreement. Plaintiff does not dispute that the collective bargaining 

agreement provides for premium wages for “all overtime hours worked,” as that term is 

defined in the collective bargaining agreement. The exemption accorded by Labor Code 

section 514 accordingly applies, as does the exemption set forth in section 12(C) of wage 

order 9. The rest period requirements set forth in section 12 of wage order 9 do not apply 

to plaintiff and the MTA employees he purportedly represents. The trial court did not err 

by sustaining the demurrer to plaintiff’s fourth cause of action for violation of the rest 

period requirements.

V. PAGA claim

“Under the Labor Code, the Labor and Workforce Development Agency (LWDA) 

and its constituent departments and divisions are authorized to collect civil penalties for

specified labor law violations by employers. [Citation.] To enhance the enforcement of 

the labor laws, the Legislature enacted [the Labor Code Private Attorneys General Act 

(Lab. Code, § 2698 et seq.)] PAGA in 2003.” (Home Depot U.S.A., Inc. v. Superior 

Court (2010) 191 Cal.App.4th 210, 216.) Section 2699, subdivision (a) of PAGA 
19

“permits aggrieved employees to recover civil penalties that previously could be 

collected only by LWDA. [Citation.] In addition, to address violations for which no 

such penalty had been established, subdivision (f) of the statute created ‘a default penalty 

and a private right of action’ for aggrieved employees.” (Ibid.)

Although PAGA does not create a private right of action to directly enforce a 

wage order promulgated by the IWC, a PAGA action “can serve to indirectly enforce 

certain wage order provisions by enforcing statutes that require compliance with wage 

orders.” (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 

1132.) The minimum wage requirements of Labor Code section 1194 is one of those 

statutes. (Lab. Code, §§ 2699.3, subd. (a), 2699.5.)

The MTA’s sole basis for demurring to plaintiff’s PAGA cause of action was that 

plaintiff’s claims under the Labor Code are precluded, as a matter of law, by PUC 

sections 30257 and 30750. As discussed, those PUC sections do not bar plaintiff’s 

statutory minimum wage claim. We accordingly reverse the order sustaining the 

demurrer to plaintiff’s PAGA claim for the same reason we reverse the order sustaining 

the demurrer to plaintiff’s state minimum wage claim.

DISPOSITION

The order sustaining the demurrer to the second cause of action for violation of the 

minimum wage requirements under Labor Code section 1194 and wage order 9 and to the 

third cause of action for civil penalties under PAGA for violation of the minimum wage 

requirements is reversed. The judgment is otherwise affirmed. The parties will bear their 

respective costs on appeal.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J. ____________________________, J.

ASHMANN-GERST HOFFSTADT
Filed 12/17/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

NATHAN FLOWERS,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B256744

 (Los Angeles County

 Super. Ct. No. BC515136)

 ORDER FOR PUBLICATION

THE COURT:*

The opinion in the above entitled matter filed on November 25, 2015, was not 

certified for publication.

For good cause it now appears that the opinion should be published in the Official 

Reports and it is so ordered.

*ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.