All too often at Miller Wilmers APC we find that employees who have to come to us with separate claims, in reality had significant rest break violations they were unaware of, particularly in the restaurant and security industries. Employers across the state have implemented practices that almost guilt an employee into not taking their rest period, however, in many circumstances that is ILLEGAL. 

Your Rest Break Entitlements

For most employees, you are entitled to no less than a 10-minute uninterrupted, duty-free rest break for every 4 hours you work or "major fraction thereof." Let's break this down. To start, "uninterrupted" means you are enjoying the full 10-minute period, or more if the employer provides more. Often times employers will provide a rest period that is not timed, and it is sort of an honor system and managers feel free to pull an employee from their rest period once the workload of the business or facility increases. This is illegal and you are entitled to a genuine uninterrupted 10-minute rest break. This goes hand in hand with your rights to a "duty-free" rest break. This means you are not on call, you are not responding to e-mails, text messages, phone calls, or answering work related questions, dealing with customers or clients or anything of the like. 

The "Major Fraction Thereof" right has been interpreted by our courts to mean any amount of time greater than two hours. Check out this hand chart for further guidance. 

Notice how you are entitled to a second rest break at six hours and one minute of work. This is how the law sees the "major fraction thereof" portion of your rest break entitlement. 

Rest Break Requirements

To start, rest breaks are paid. There are some employers that require you clock out and clock back in during your rest period as a means to track your rest period and ensure you are receiving a full ten minutes or greater of rest. Unfortunately, these employers often are not paying for rest breaks or pay for some and forgo paying for others or choose only to pay for ten total minutes and any additional time will go unpaid. These employers are playing a dangerous game with rest break compliance, and it is important to ensure you are being paid for your full rest break entitlement. 

Rest breaks should be taken in the middle of each four-hour work period to the extent possible. If an employer frequently requires you to take your rest period at the very beginning of your shift or the very end to get it out of the way, this may not be a compliant rest break and you may be entitled to a rest period penalty for this time. 

Your rest break and lunch break should be separate from one another, and you should not be forced to take them together at the convenience of the company unless the nature of the business or workflow prevents you from enjoying your rest break at another time. 

Your employer may not require you to remain on the work premises during your rest breaks. It does not matter if you only have 10-minutes and cannot reasonably travel anywhere else during this ten-minute period. In order to have a California compliant rest break, the employer must relinquish control of you and allow you to travel wherever you please during your break. 

For Salaried Employees

There is a misunderstanding among some California Employers that so long as an employee is paid on a salary basis, they are not entitled to meal and rest periods. California requires employers to provide nonexempt salaried employees with the same meal and rest periods that hourly employees receive. The IWC Wage Orders provide the rules for exempt status, which typically require that salaried employees are paid a minimum of $58,240 for employers with 1 to 15 employees and $62,400 for employers with 26 or more employees. These exempt employees must also meet certain "primary duties" requirements which typically involve the supervision of 2 or more employees and the application of independent judgment in their position. Many salaried exempt employees in California are misclassified and are in fact entitled to their meal and rest periods, as well as overtime for certain hours worked.