It happens more often than you think – employees often work entire shifts without receiving a lunch or ten minute rest period. This would be a break violation. Continue reading to see if your employer has committed a break violation.
California law states that no employer shall employ any person for a work period of more than five hours without providing a meal period of no less than 30 minutes. If the total work period of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than 30 minutes is required if an employee works more than ten hours per day. If the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512.
There some stipulations to providing a bonafide meal break. The California Supreme Court in the Brinker Restaurant Corporation case stated that: (1) the employer must relieve the employee of all duty; (2) the employer must relinquish control over all activities of the employee: (3) the employer must permit a reasonable opportunity to take an uninterrupted 30 minute meal break; and (4) the employer must not discourage or in any way interfere with the employee taking an uninterrupted 30 minute meal break.
It is important to note that unless the employee is relieved of all duty, allowed to leave the work premises, and free to do whatever he/she pleases during that 30 minutes, the meal period shall be considered an “on duty” meal break. It is then counted as hours worked which must be compensated at the employee's regular rate of pay. Even if the employee is relieved of all duty, if the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
If an employer fails to provide an employee their meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee's regular rate of pay each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.
Under all of the IWC Orders except Orders 12, 14, 15, and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink.
When am I supposed to receive my meal breaks during my shift?
In general, when an employee works for a work period of five hours or more, a meal period must be provided no later than the employee's fifth hour of work. When an employee works for a period of 10 hours or more, a second meal period must be provided no later than the employee's tenth hour of work.
Can I choose to work through my meal break so I can leave work 30 minutes early?
No, working through your meal period does not entitle you to leave work early prior to your scheduled quitting time. In order for an “on duty” meal period to be permitted under the Industrial Welfare Commission Wage Orders, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time.
Can my employer require me to stay on the premises during my meal break?
No. Your employer may not require that you remain on its premises during your meal period, even if you are relieved of all work duties. If your employer requires you to stay on the premises, you are being denied your time for your own purposes and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to the Industrial Welfare Commission Wage Orders, if you are required to eat on the premises, a suitable place for that purpose must be designated. “Suitable” means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.
What is the statute of limitations on filing a claim for meal breaks?
In the case of Murphy v. Cole, the California Supreme Court held that the remedy for a break violation is “one additional hour of pay” under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged meal period violation.
California law requires that employers must authorize and permit employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer's premises during such periods
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, not one additional hour of pay for each rest period that was not provided during 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.
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.
My employer is not allowing me to take a rest period. Is there anything I can do about this situation?
Yes, there may be something you can do if you are an employee covered by the rest period requirements of the Industrial Welfare Commission 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 break violation is committed. 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.
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.
Can my employer require that I stay on the work premises during my rest period?
Yes, your employer can require that you stay on the premises during your rest break. Since you are being compensated for the time during your rest period, your employer can require that you remain on its premises. Under most situations, the employer is required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.
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.
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.
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 due to break violation (with the Labor Commissioner's Office), or you can file a lawsuit in court against your employer to recover the the premium of one additional hour of pay at your regular rate of compensation for each workday that the break violation is committed.
What is the applicable statute of limitations on filing a rest period claim?
In the case of Murphy v. Cole, the California Supreme Court held that the remedy for a break violation is “one additional hour of pay” under Labor Code section 226.7 and is subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged break violation. See attached Division memoranda regarding the Court's decision.
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 retaliates against you in any manner whatsoever, for example, he discharges you because you object to the fact that he's not providing employees with rest breaks, or because you file a claim or threaten to file a break violation claim with the Labor Commissioner, you can file a retaliation complaint with the Labor Commissioner's Office. In the alternative, you can file a lawsuit in court against your employer.