REST PERIODS UNDER CALIFORNIA LAW

California wage orders require that employers permit all nonexempt employees to take a ten (10) minute rest period for every four (4) hours worked unless the employee's total daily work time is less than three and a half (3½) hours. The rest period is counted as hours worked so there is no deduction from an employee's wages. In order to receive a full ten (10) minute break, the employer must deduct any time it takes to travel to and from the rest/break place. Department of Labor Standards of Enforcement requires that the ten (10) minute rest periods must be consecutive. This means that a full ten (10) minutes must be provided rather than a succession of several smaller breaks taken throughout the day. Furthermore, restroom breaks are not counted as rest periods.

There is not a requirement that an employer schedule rest periods or that the breaks occur at a fixed time. Furthermore, unlike meal beaks, employers are not required to keep records of rest periods taken by employees. However, the break must be in the middle of the work period insofar as practicable. In addition, the first break must begin within the first four (4) hours worked.

Rest periods should not be combined with a meal period. Generally, the Department of Labor Standards of Enforcement advises employers that the first break must proceed the meal period and the second break must follow the meal period. The Department of Labor Standards of Enforcement has issued an advisory opinion indicating that rest periods should not be attached to the meal period. Further DLSE opinion letters advise that a rest period must be proceeded and followed by some work period during the day. That is, an employer is not permitted to give the ten (10) minute rest period at the end of the work day.

Unlike meal periods, there are no provisions concerning waiver of rest periods. The employer is required to authorize and permit the employee to take the rest period; however, unlike meal periods, the employer is not required to monitor its employees to make sure that they take their full rest period. Employers are not required to keep records of rest periods. If challenged by an employee, and employer may find it difficult to establish that the rest periods have been taken.

Penalties for failing to provide the required rest periods include (a) penalty equivalent to one (1) hour pay at the employee's regular rate for each work day that the rest period was not provided; (b) civil penalties; (c) waiting time penalties; (d) and attorney fees and costs.