Meal and Rest Breaks
In California, the Industrial Welfare Commission (IWC) issues orders that govern employer obligations regarding wages and working conditions. One area the IWC regulates is rest periods or "breaks."
Generally, California employers must "authorize and permit" nonexempt employeees to take a rest period roughly in the middle of each work period. The rest period is based on the total hours worked that day and must be at a minimum rate of ten consecutive minutes of break time for each hour worked. Because employees are paid for breaks, employers generally may require the employee to take breaks onsite under Order 16-2001:
Rest periods must take place at employer designated areas which may include or be limited to the employees' immediate work area.
Employers must provide paid breaks at a rate of ten minutes for each hour worked over 2.5 hours. The Division of Labor Standards Enforcement (DLSE) considers any work longer than two hours to be a major fraction of four hours. But a rest period is not required for employees whose daily total work is less than three and a half hours.
The rest period is counted as time worked and the employer must pay the employee for rest periods.
If an employer fails to provide a required rest period, the employer is liable for one additional hour of pay at the employee's regular hourly rate for each workday that the rest period or periods were not provided. Labor Code Section 226.7. If the employer contests liability, it may also be required to pay the employee's reasonable attorney's fees.
Under a 2007 case called Murphy v. Cole, an employee must bring a claim alleging the employer's failure to provide meal or rest periods within three years of the violation. Cal. Labor Code 226.7.
In an October 2010 Hernandez v. Chipotle Mexican Grill, Inc. (discussed here), the court held case makes clear that employers need only provide employees with the opportunity for breaks and not force them to take those breaks. The court noted:
"It is an employer's obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time."
Rest Homes and Residential Care Facilities and Other Exceptions
IWC Order 5-2001, Section 12(C) provides an exception for some employees of 24-hour residential care facilities who may have more limited rest periods under certain circumstances.
Another exception to the general rest period requirement is for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who shall have additional interim rest periods during periods of actual rehearsal or film or video shooting. IWC Order 12-2001, Section 12 (C).
For employees in certain on-site occupations in the construction, drilling, logging and mining industries, the employer may stagger rest periods to avoid interruption in the flow of work and to maintain continuous operations. IWC Order 16-2001, Section 11(A).
Under IWC Order 10-2001, Section12(C), a crew member employed on a commercial passenger fishing boat who is on an overnight trip must receive no less than eight hours off-duty time during each 24-hour period. This eight-hour period is in addition to required meal and rest periods.
Every California employer, including the State of California and any city or county, must provide reasonable break time to accommodate an employee who wants to express breast milk for the employee's infant child. Cal. Labor Code Section 1030. The break time for pumping breast milk need not be in addition to regular breaks provided to employees who are not nursing. But if the time for nursing a regular breaks can't happen at the same time, the employer is not require to pay the nursing employee for breaks taken to express breast milk if those break periods exceed regular break time offered to all employees.
Employers are required to make reasonable efforts to provide nursing employees with the use of a room or other private location close to the employee's work area for the employee to express milk. A toilet stall does not satisfy this requirement. The room or location may include the place where the employee normally works if it is private. An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.
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.