Brinker Clarifies California Rest Break Law

Posted on April 24, 2012 | 1 comment

Brinker Clarifies California Rest Break  Law

In its recent decision Brinker vs. Superior Court (2012), the California Supreme Court finally provided clear guidelines on how rest and meal break provisions of the Labor Code and IWC Wage Orders should be interpreted.  This post discusses only rest break laws under the Brinker decision.  

To learn about Brinker’s impact on California meal break laws, read this post . The following is an outline of main points.

Governing Law

The obligation to provide rest periods is imposed solely by the wage orders. For example, Wage Order 5-2001, subdivision 12(A) provides in relevant part: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period 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. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3½) hours.”

Entitlement to Rest Breaks.

The following represents specific time frames that employers must keep in mind while determining whether their employees are entitled to rest breaks.

Employee works less than 3.5 hours a workday – no rest break;

Employee works more than 3.5 hours but less than 6 hours a workday – one 10-minute breaks;

Employee works more than 6 hours but less than 10 hours a day –  two 10-minute breaks;

Employee works more than 10 hours but less than 14 hours a workday – three 10-minute breaks.

Rest Period Timing

Employers are not required to provide a rest period before any meal period.  Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where  it is not practical.

Employer must pay for rest breaks.

Unlike meal breaks, rest periods are counted as time worked and are compensable.  Therefore, employers may require their employees to take their rest breaks on premises.

Failure to Provide Rest Breaks = One Additional Hour of Pay

Under Labor Code section 226.7, employers, who fail to provide an employee rest breaks under an applicable wage order, must pay the employee 1 hour of pay at the employee’s regular rate of pay for each workday that one or more rest periods are not provided. Only 1 hour of premium pay is due no matter how many rest breaks an employee misses in a day. However, an employer may be liable for 1 hour of premium pay for a day if an employee misses a rest period and 1 hour of premium pay if an employee misses a meal period. Marlo v UPS (2009)

Print Friendly

1 Comment

  1. Great blog; I’m learning a lot! Are the meal and rest period pay premiums subject to late pay penalties? So an employee leaves a company and is entitled to meal and rest pay premiums. The employee is also subsequently paid after the waiting time penalty period or not paid at all.

Leave a Comment

Your email address will not be published. Required fields are marked *

TALK TO A SAN FRANCISCO EMPLOYMENT LAW ATTORNEY
(415) 693-9107