Q: I have just entered the work force and I work in the service industry on 12-hour shifts. My supervisor says I am entitled to one 30-minute lunch break and two rest breaks of 10 minutes each. A co-worker said it should actually be two lunch breaks and three rest breaks because we work 12 hours. Is this right?
A: Your co-worker is right. Under California law, employers must provide a 30-minute uninterrupted meal period to employees for every 5 hours of work. Thus, if you work 12 hours in a shift, you are entitled to two 30-minute meal breaks. “Providing” a meal period means the employer must provide an off-duty meal period. “Off-duty” means employees are 1) relieved of all duty for an uninterrupted period of 30 minutes; 2) free to leave the workplace; and 3) not controlled by the employer as to their activities during the break.
Aside from meal breaks, employers must also authorize and allow employees a “net 10-minute” paid rest break for every four hours worked or major fraction thereof. The rest break should be in the middle of the work period. 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.
California’s Labor Commissioner issued more updated information on key issues regarding rest breaks. Below are some of the highlights:
Can the employer require employees to stay on the work premises during the rest break?
No, the employer cannot impose any restraints not inherent in the rest period requirement itself. The California Supreme Court has held that the rest period requirement “obligates employers to permit and authorize 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.” 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.
Can the employer require that employees keep in communications during a rest break?
No, on-call rest breaks are prohibited. Requiring employees to be “on-call” while on their rest breaks is contrary to the requirement that employees be relieved of all work duties during their rest breaks.
Is the use of toilet facilities during work counted as part of the ten-minute rest break?
No, the 10-minute rest period is not designed to be exclusively for use of toilet facilities. The rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods required by law. Also, the law 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.”
Can rest breaks be combined with meal breaks?
Meal and rest breaks are to be taken separately. These two breaks should not be combined to form one long break time. The employer cannot give the employee a 1-hour break and count this as the employee’s meal and rest breaks.
If an employer does not authorize or allow a meal or rest break, the employer must pay the employee one hour of pay at the employee’s regular rate of pay for each workday that a meal period is not provided, and an additional one hour of pay at the employee’s regular rate of pay if a rest period is not provided.
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]
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