Off-Duty Time During a California Work Day

California employers must provide every not-exempt-from-overtime employee unpaid meal and paid rest breaks based on the number of hours that employee works in a given day.  However, the rules vary for such workers as specified in the 17 Industrial Welfare Commission (IWC) Wage Orders covering in different industries and occupations.

Unpaid Meal Periods

First Meal Period: Employers may not employ a non-exempt worker for a work period of more than five (5) hours a day without providing the person an off-duty meal period of not less than 30 minutes commencing before the end of the fifth hour. However, if the employee works no more than six (6) hours in a day, the employee may by written statement waive that meal period with employer consent. See, IWC Wage Orders  and Labor Code Section 512.

For example, if an employee begins work at 9:00 a.m. and works an eight-hour day, the employee must start a single meal break before 2:00 p.m. when the fifth hour of work ends.

Second Meal Period: Employers also may not employ workers for more than ten (10) hours in a particular day without providing a second off-duty meal period of not less than 30 minutes. However, if the total hours worked do not exceed 12, employer and employee may waive this second meal by written mutual consent as long as the first meal period in that day was not waived.

For example, if an employee begins a 12-hour work day at 9:00 a.m. and takes a first 30 minute off-duty meal period between 1:30 p.m. and 2:00 p.m., then the employee must start a second 30 minute meal break before 7:30 p.m., the close of the tenth hour of work. Or the employee could waive that second meal break.

Employees must be relieved of all duty, must relinquish control of all work activities, must be given the reasonable opportunity to be uninterrupted during any such provided 30-minute meal period and must not be impeded or discouraged from taking that period. Otherwise, that meal period shall be considered “on duty” and counted as time worked. An “on duty” meal period shall be permitted only where the nature of the work prevents an employee from being relieved of all duty and the parties agree in writing to an on-the-job paid meal period.

The California Division of Labor Standards Enforcement (DLSE) recognizes that some circumstances may require that workers stay on premises for their meals. However, the DLSE holds that in this instance, with minor exceptions for such things as child care, foster care and residential health care workers under IWC Wage Order 5, an employer must pay such workers for their required on-premises meal periods as above. Under IWC Wage Order 15, personal attendants who care for people in their homes and perform only certain kinds of duties are not entitled to specific meal breaks.

Paid Rest Breaks

California employers must also provide (“authorize and permit”) all non-exempt employees paid rest breaks. The amount of rest time shall be based on the total hours worked daily at the rate of ten (10) minutes “net rest time” per four (4) hours or major fraction thereof (i.e., more than two hours). However, an employer need not provide any such paid rest time for an employee whose total daily work time is less than 3.5 hours. See, IWC Wage Orders.

Thus:

The DLSE has interpreted “ten minutes net rest time” as a consecutive ten minutes that begins once a worker has arrived at his/her appropriate rest area away from the workstation, e.g., a break room or perhaps an outside smoking area. In 2016, the California Supreme Court held that employers may not require employees to remain on-call during rest breaks, and must relinquish all control over them. Augustus, et al. v. ABM Security Services, Inc.; see Workers Don’t Lose the Snooze (June, 2017).

The Wage Orders (paragraph no. 5) generally direct that employers are required to provide suitable resting facilities for employees during working hours in an area separate from the toilet rooms.  See DLSE Article Rest Periods/Lactation Accommodation.

IWC Wage Order 5 permits a limited exception to the “fully off-duty” requirement for rest breaks. An employee responsible for child care, foster care and residential health care may take his or her rest period while retaining general supervision of the applicable resident(s) if that employee is in sole charge of that person or those persons. However, an employer in these contexts must also authorize and permit another full ten-minute rest period for such a worker who had to interrupt a break to respond to the needs of residents. Wage Order 5, section 12(C). Similar to the above meal period rule, under IWC Wage Order 15, personal attendants are not entitled to specific rest breaks.

Rest breaks are to be available in the middle of each four-hour work period insofar as practicable. Rest periods should not be combined with meal periods or other rest periods. Employees should not use rest breaks to start work ten minutes late or to end work ten minutes early.

If an employer fails to provide an employee a required meal period or rest break, that employer must pay that worker one additional hour of pay for each day the worker misses a meal period and one hour for each day the worker misses one or more rest breaks. The employer must include this additional pay in that employee’s next paycheck. See IWC Orders and Labor Code Section 226.7(c).

The Supreme Court of California’s 2012 decision in Brinker Restaurant Corp. v. Superior Court clarified the meaning of “employer provided” meal periods and rest breaks. In essence, employers are not responsible for policing workplaces to make sure employees take their meals and rest breaks. Rather, employers are responsible for clear policies setting out the above standards and for consistently encouraging and supporting employee prerogatives to take their entitled times away from their labors during the workday. See also, Brinker Case Settles for $56 Million (August, 2014).

A recent court decision confirmed that Brinker also applies to agency-supplied workers. In Serrano v. Aerotek, Inc., the Court of Appeal held that a staffing agency that supplied hundreds of employees to a company and the company itself were only required to make off-duty meal periods available and were not required to police whether the workers took those meal periods.  In fact, they were not even required to investigate if they knew of missed meal periods, so long as they made those off-duty meal breaks available and did not interfere with employees taking them.

For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

Updated, April 12, 2018