Don't Let Your Employer Deny You Rest Breaks!

Like meal breaks, California provides employees expansive rights to rest breaks.

Employers of California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.

If an employer fails to provide an employee a rest period in accordance with an applicable IWC Order, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. (Labor Code Section 226.7.) Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday.

The rest period is defined as a “net” ten minutes, which means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.

Contact us to learn more about your rest break rights.

SOME FAQ REGARDING REST BREAKS

1. What are the basic requirements for rest periods under California law?

Employers of California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.

2. Must the rest periods always be in the middle of each four-hour work period?

Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.

3. My employer is not allowing me to take a rest period. Is there anything I can do about this situation?

Yes, there is something you can do if you are an employee covered by the rest period requirements of the IWC Wage Orders. If your employer fails to authorize and permit the required rest period(s), you are to be paid one hour of pay at your regular rate of compensation for each workday that the rest period is not authorized or permitted. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement or file a lawsuit.

Either way, you should contact an attorney as soon as possible.

4. Is it permissible if I choose to work through both of my rest periods so that I can leave my job 20 minutes early?

No, working through your rest period does not entitle you to leave work early or arrive late.

5. Can my employer require that I stay on the work premises during my rest period?

No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services, Inc. (2016) 5 Cal.5th 257, 269, the California Supreme Court held that the rest period requirement “obligates employers to permit-and authorizes employees to take off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.” (Citation omitted.) As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.

6. Can an employer require that you keep in radio communication on a rest period?

No, the court in Augustus also held that on-call rest periods are prohibited. “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” Augustus v. ABM Security Services, Inc. (2016) 5 Cal.5th 257, 269.

7. Can I have additional rest breaks if I am a smoker?

No, under California law rest period time is based on the total hours worked daily, and only one ten-minute rest period need be authorized for every four hours of work or major fraction thereof.

8. When I need to use the toilet facilities during my work period does that count as my ten minute rest break?

No, the 10-minute rest period is not designed to be exclusively for use of toilet facilities as evidenced by the fact that the Industrial Welfare Commission requires suitable resting facilities be in an area “separate from toilet rooms.” The intent of the Industrial Welfare Commission regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. This conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms And Resting Facilities, which requires that “Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.”

Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station; and, it does not indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.

9. I am regularly scheduled to work an eight-hour shift. What can I do if my employer doesn’t allow me to take a rest break?

You can either file a wage claim with the Labor Commissioner’s Office or you can file a lawsuit in court against your employer to recover the premium of one additional hour of pay at your regular rate of compensation for each workday that the rest period is not provided.

If this is happening to you, you should contact an attorney as soon as possible.

10. What happens if my employer does not provide me with the opportunity to take a break for lactation purposes?

If your employer is not providing you with adequate break time and/or a place to express milk as provided for in Labor Code section 1030, you may file a wage claim or lawsuit and recover one hour of pay for each violation.

In addition, any employee who is a victim of retaliation for either asserting or attempting to assert a right to lactation accommodation may file a retaliation claim with DLSE pursuant to Labor Code Section 98.7 or file a lawsuit.

If this is happening to you, you should contact an attorney as soon as possible.

11. What can I do if my employer retaliates against me because I objected to the fact that he doesn’t provide employees with rest breaks?

If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you ask about not getting a rest period, or object to what you believe to be an illegal practice, or because you threaten to enforce your rights by contacting an attorney or the Labor Commissioner’s Office, you can file a lawsuit in court against your employer.

For a free consultation and to learn more, contact us.