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Rest
periods
In California,
the Industrial
Welfare Commission Wage Orders require that employers must
authorize and permit nonexempt employees to take a rest period
that must, insofar as practicable, be taken in the middle of
each work period. The rest period is based on the total hours
worked daily and must be at the minimum rate of a net ten consecutive
minutes for each four hour work period, or major fraction thereof.
The Division of Labor Standards Enforcement (DLSE) considers
anything more than two hours to be a "major fraction" of four."
A rest period is not required for employees whose total daily
work time is less than three and one-half hours. The rest period
is counted as time worked and therefore, the employer must pay
for such periods. Since employees are paid for their rest periods,
they can be required to remain on the employer’s premises during
such periods. With respect to the taking of rest periods, an
exception exists under IWC
Order 5-2001, Section 12(C) for certain employees of 24-hour
residential care facilities who may have their rest period limited
under certain circumstances. Another exception to the general
rest period requirement is for swimmers, dancers, skaters, and
other performers engaged in strenuous physical activities who
shall have additional interim rest periods during periods of
actual rehearsal or shooting. IWC
Order 12-2001, Section 12 (C).
For employees in certain
on-site occupations in the construction, drilling, logging and
mining industries, the employer may stagger the rest periods
to avoid interruption in the flow of work and to maintain continuous
operations, or schedule rest periods to coincide with breaks
in the flow of work that occur in the course of the workday.
IWC
Order 16-2001, Section 11(A) Additionally, for these
employees rest periods need not be authorized in limited circumstances
when the disruption of continuous operations would jeopardize
the product or process of the work. However, under such circumstances,
the employer must make-up the missed rest period within the
same workday or compensate the employee for the missed ten minutes
of rest time at his or her regular
rate of pay within the same pay period. IWC
Order 16-2001, Section 11(B) Under Order
16-2001, rest periods must take place at employer designated
areas which may include or be limited to the employees immediate
work area.
Under IWC
Order 10-2110, Section12(C), a crew member employed on a
commercial passenger fishing boat who is on an overnight
trip shall receive no less than eight hours off-duty time
during each 24-hour period. This eight-hour period is in addition
to the meal and rest periods required under the Wage Order.
If an employer fails to
provide an employee a rest period in accordance with an applicable
IWC
Order, the employer shall pay the employee one additional
hour of pay at the employee’s regular
rate of pay for each workday that the rest period is not
provided. Labor
Code Section 226.7 Thus, if an employer does not provide
all of the rest periods required in a workday, the employee
is entitled to one additional hour of pay for that workday,
not one additional hour of pay for each rest period that was
not provided during that workday.
The rest period is defined
as a "net" ten minutes, which means that the rest period begins
when the employee reaches an area away from the work area that
is appropriate for rest. Employers are required to provide suitable
resting facilities that shall be available for employees during
working hours in an area separate from the toilet rooms.
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Q-1.
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What
are the basic requirements for rest periods under California
law? |
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Ans.
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California employees covered
by the rest period provisions of the Industrial
Welfare Commission Wage Orders must be provided
with a net 10-minute paid rest period for every four
hours worked or major fraction thereof. Insofar as is
practicable, the rest period should be in the middle
of the work period. If an employer fails to provide
an employee a rest period, the employer shall pay the
employee one hour of pay at the employee’s regular rate
of pay for each workday that the rest period is not
provided.
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Q-2.
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Must
the rest periods always be in the middle of each four-hour
work period? |
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Ans.
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Rest breaks must be given
as close to the middle of the four-hour work period
as is practicable. If the nature or circumstances of
the work prevent the employer from giving the break
at the preferred time, the employee must still receive
the required break, but may take it at another point
in the work period.
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Q-3.
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My
employer is not allowing me to take a rest period. Is
there anything I can do about this situation? |
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Ans.
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Yes, there is something
you can do if you are an employee covered by the rest
period requirements of the Industrial
Welfare Commission Wage Orders. If your employer
fails to provide the required rest period, you are to
be paid one hour of pay at your regular rate of compensation
for each workday that the rest period is not provided.
If your employer fails to pay the additional one-hour's
pay, you may file
a wage claim with the Division of Labor Standards
Enforcement.
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Q-4.
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Is
it permissible if I choose to work through both of my
rest periods so that I can leave my job 20 minutes early? |
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Ans.
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No,
working through your rest period does not entitle you
to leave work early or arrive late.. |
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Q-5.
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Can
my employer require that I stay on the work premises during
my rest period? |
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Ans.
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Yes,
your employer can require that you stay on the premises
during your rest break. Since you are being compensated
for the time during your rest period, your employer can
require that you remain on its premises. And under most
situations, the employer is required to provide suitable
resting facilities that shall be available for employees
during working hours in an area separate from the toilet
rooms. |
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Q-6.
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Can
I have additional rest breaks if I am a smoker? |
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Ans.
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No, under California law
rest period time is based on the total hours worked
daily, and only one ten-minute rest period need be authorized
for every four hours of work or major fraction thereof.
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Q-7.
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When
I need to use the toilet facilities during my work period
does that count as my ten minute rest break? |
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Ans.
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No, the 10-minute rest
period is not designed to be exclusively for use of
toilet facilities as evidenced by the fact that the
Industrial Welfare Commission requires suitable resting
facilities be in an area "separate from toilet rooms."
The intent of the Industrial Welfare Commission regarding
rest periods is clear: the rest period is not to be
confused with or limited to breaks taken by employees
to use toilet facilities. This conclusion is required
by a reading of the provisions of IWC Orders, Section
12, Rest Periods, in conjunction with the provisions
of Section 13(B), Change Rooms And Resting Facilities,
which requires that "Suitable resting facilities shall
be provided in an area separate from the toilet rooms
and shall be available to employees during work hours."
Allowing employees to use toilet facilities during working
hours does not meet the employer’s obligation to provide
rest periods as required by the IWC Orders. This is
not to say, of course, that employers do not have the
right to reasonably limit the amount of time an employee
may be absent from his or her work station; and, it
does not indicate that an employee who chooses to use
the toilet facilities while on an authorized break may
extend the break time by doing so. DLSE policy simply
prohibits an employer from requiring that employees
count any separate use of toilet facilities as a rest
period.
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Q-8.
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I
am regularly scheduled to work an eight-hour shift. What
can I do if my employer doesn’t allow me to take a rest
break? |
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Ans.
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You
can either file
a wage claim (the Labor Commissioner's Office), or
you can file a lawsuit in court against your employer
to recover the the premium of one additional hour of pay
at your regular rate of compensation for each workday
that the rest period is not provided. |
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Q-9.
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What
is the procedure that is followed after I file a wage
claim? |
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Ans.
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After your claim is completed
and filed with a local office of the Division of Labor
Standards Enforcement (DLSE), it will be assigned to
a Deputy Labor Commissioner who will determine, based
upon the circumstances of the claim and information
presented, how best to proceed. Initial action taken
regarding the claim can be referral to a conference
or hearing, or dismissal of the claim.
If the decision
is to hold a conference, the parties will be notified
by mail of the date, time and place of the conference.
The purpose of the conference is to determine the validity
of the claim, and to see if the claim can be resolved
without a hearing. If the claim is not resolved at the
conference, the next step usually is to refer the matter
to a hearing or dismiss it for lack of evidence.
At the hearing the
parties and witnesses testify under oath, and the proceeding
is recorded. After the hearing, an Order, Decision,
or Award (ODA) of the Labor Commissioner will be served
on the parties.
Either party may
appeal the ODA to a civil court of competent jurisdiction.
The court will set the matter for trial, with each party
having the opportunity to present evidence and witnesses.
The evidence and testimony presented at the Labor Commissioner’s
hearing will not be the basis for the court’s decision.
In the case of an appeal by the employer, DLSE may represent
an employee who is financially unable to afford counsel
in the court proceeding.
See the Policies
and Procedures of Wage Claim Processing pamphlet
for more detail on the wage claim procedure.
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Q-10.
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What
can I do if I prevail at the hearing and the employer
doesn’t pay or appeal the Order, Decision, or Award? |
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Ans.
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When
the Order, Decision, or Award (ODA) is in the employee's
favor and there is no appeal, and the employer does not
pay the ODA, the Division of Labor Standards Enforcement
(DLSE) will have the court enter the ODA as a judgment
against the employer. This judgment has the same force
and effect as any other money judgment entered by the
court. Consequently, you may either try to collect the
judgment yourself or you can assign it to DLSE. |
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Q-11.
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What
can I do if my employer retaliates against me because
I objected to the fact that he doesn’t provide employees
with rest breaks? |
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Ans.
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If your employer discriminates
or retaliates against you in any manner whatsoever,
for example, he discharges you because you object to
the fact that he’s not providing employees with rest
breaks, or because you file a claim or threaten to file
a claim with the Labor Commissioner, you can file
a discrimination/retaliation complaint with the
Labor Commissioner’s Office. In the alternative, you
can file a lawsuit in court against your employer.
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