- Employees get 10-minute breaks based on time worked. Employees must be given 10-minute net rest periods for every 4 hours of work, to be taken in the middle of each 4-hour period if practicable. A rest period need not be provided for employees whose total daily work is less than 3.5 hours. Thus, employees are entitled to one 10-minute net rest period for shifts from 3.5 to 6 hours in length, two for shifts of more than 6 hours up to 10 hours, and three for shifts of more than 10 hours up to 14 hours, and so on. Brinker Restaurant Corp. v Superior Court (2012) 53 C4th 1004, 1029. (A “net rest period” means 10 minutes of actual resting time. Thus, if it takes an employee 5 minutes to walk to and return from a rest area, that time cannot be deducted from the rest period.)
- Employers can’t control how rest periods are spent. Lab C §226.7 requires that employers relinquish any control over how employees spend their break time and relieve their employees of all duties, including any obligation that employees remain on call. A rest period must be a period of rest. Augustus v ABM Security Servs., Inc. (2016) 2 C5th 257.
- Employees can choose to skip rest periods, but employers still have to authorize them. An employee isn’t required to take the rest periods, but their failure to take them doesn’t get the employer off the hook: Employers have “a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period.” Brinker Restaurant Corp., 53 C4th at 1031. Failing to account for these rest periods when scheduling and assigning tasks to employees may be deemed a failure to “permit” the rest periods. Cicairos v Summit Logistics, Inc. (2005) 133 CA4th 949, 963. Likewise, failing to have a rest period policy (written or unwritten) may be deemed a failure to authorize rest periods.
- Rest breaks can’t be bargained away. Rest breaks represent a state-mandated minimum labor standard; the right to rest breaks can’t be waived or abridged by contract. Lab C §219(a).
- There are penalties for not giving a rest break. In general, if an employer fails to authorize and permit an employee to take a rest period in accordance with an applicable wage order, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the rest period isn’t provided. Lab C §226.7(c). An owner, director, officer, or managing agent of an employer may be held personally liable for violations of Lab C §226.7.
Get sample language for a rest break policy in CEB’s Drafting Employment Documents for California Employers §9.10. And get more information on rest breaks, and the related topic of meal breaks, in CEB’s Advising California Employers and Employees §§5.48–5.49. For a comprehensive look at all wage and hour issues, turn to CEB’s California Wage and Hour: Law and Litigation.
Other CEBblog™ posts on wage and hour issues:
- 10 Things to Include in an Employer Meal Break Policy
- Wage and Hour Law Continues to Be Hot
- Mediation May Be the Right Tool for Wage and Hour Suits
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