Most California private sector employees are entitled to paid rest periods (Labor Code Section 226.7). There are exceptions for executives, administrators or professionals, who are exempt from the overtime laws, and for a few miscellaneous categories such as some group home employees and crew members on some commercial boats. There are special rules for certain on-site construction, drilling, logging and mining jobs.
An employee who is not covered by one of the specified exceptions is entitled to take a rest period of ten consecutive minutes for each work period of four hours “or major fraction thereof”. There is no requirement of a rest period if the work day is less than 3.5 hours total. This means the employer must “authorize and permit” 10 minutes of rest periods in a day between 3.5 and 6 hours, 20 minutes in a day over 6 hours, up to 10, 30 minutes in a day over 10 up to 14 hours, etc. The detailed provisions regarding rest breaks are set out in Section 12 of the Industrial Welfare Commission Wage Order. See for example, IWC Wage Order 4.
The rest period is paid time. For workers who are paid by the hour, this requirement is straightforward. However, for workers who are paid a commission or piece rate, the rest period may have to be paid separately from whatever commission or piece rate the employee receives. (An example of a piece rate would be the pay for someone who installs equipment and gets paid not by the hour but some set amount for each piece of equipment installed.)
The employer does not have to ensure that the rest period is taken, but only to “authorize and permit” the employee to take it. Also, each rest period should be scheduled as close to the middle of a four hour segment of work as is practicable. There is no legal requirement that either the employer or employee record the rest periods in the daily records of time worked.
Although an employee is of course free to use the toilet facility during his rest period, reasonable use of toilet facilities at other times during the work day are not deducted from the allowable rest period time.
One resource in this area is California Department of Industrial Relations’ website summary of the law and answers to frequently asked questions (Department of Industrial Relations FAQ).
The employee may be entitled to damages from the employer when the employer does not authorize and permit required rest periods. If the employer violates this law, the employee may get damages equal to an additional hour of wages at his or her regular rate of pay for each workday in which a violation occurred. An employer may violates the law in a number of ways—for example, not paying for the time when the ten minute rest break takes place, not allowing the full ten minutes, or not allowing the number of rest breaks required.
There is a four year statute of limitations for monetary claims for such violations if rest break claims are brought as a lawsuit, so if there is a long-term ongoing pattern of violations, the damages that can be assessed can become significant.
We are committed to enforcing labor laws providing for decent working conditions, including providing an adequate number of rest periods during the work day. You are welcome to contact us with your questions in this area.