Under California Law, what are rest breaks (or Rest Periods) that Employers must provide?
As an attorney who advises Employers in California, there are a variety of California labor laws that often come up in representing those employers. In my practice, I have often run into claims by former employees that they were not provided all their rest periods or rest breaks. In California, all non-exempt workers (essentially hourly workers) must be provided certain rest breaks under California Law. Please note that the definition of an exempt versus a non-exempt worker is complicated and involved various items not fully discussed right here. A rest period or rest break is what it sounds like, basically, a time for an employee to rest and be relieved of any work obligations during that rest period.
How long is the rest period?
Each rest period is a net 10 minute rest break.
Is the rest break paid or unpaid?
The rest break is paid. So, employers should not have employees clock out for their rest periods. If Employers track the rest breaks, then the time of the rest period started and ended should be noted. Employers should try to remind employees on a regular basis, in writing to take their rest breaks.
When is a rest break required?
For every 4 hours worked (or major fraction thereof, which means even 2 hours worked would get a break), there should be one net 10 minute rest break. The rest break should be taken in the middle of the work period as much as possible.
So, how many rest breaks must I give to my employees for an 8 hour shift?
Typically, 2 rest periods or breaks of 10 minutes per 8 hour shift of work.
What happens if I do not provide my employees with rest breaks?
The penalty for not supplying a rest break is that the employee could claim up to 1 additional hour of pay for each rest period missed. Thus, in a given day if both rest periods were missed, en employer may be liable for 2 additional hours of pay. Given that this is 2 additional hours of pay for 1 day, if missed rest periods are common, over an employee’s working time it could add up to thousands of dollars.
Does the employee using the bathroom facilities count toward the rest break?
No. Bathroom breaks are in addition to rest breaks, so one does not count toward the other. According to the California Department of Labor Standards and Enforcement (DLSE), under the Industrial Welfare Commission (IWC) Orders, Section 12, in conjunction with Section 13 (B).
Do workers get additional rest breaks for smoking?
No, the rest breaks are net 10 minutes for 4 hours or major fraction thereof (like 6 hours worked gets 2 rest breaks) and does not change based on whether a person smokes or not.
Can a Worker be required to stay on the work premises during my rest period?
No, you must relieve your Employee of all job duties, 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)
Can you require your employee to be in radio communication or on-call during the rest period or break?
No, In Augustus v. ABM Security Services, Inc., (2016) 5 Cal.5th 257, 269, the Court determined that an employer cannot require an employee to be on-call as it would basically not relieve employee of all duties.
Please note that the above advice is general and may not include all exceptions, or specific situations. For advice on your specific situation, contact the Attorney to review the facts of your case.
