Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Eric J. Glassman | The Daily Recorder | February 6, 2017

The simple matter of providing workers with periodic rest breaks can be more tricky than it appears. California courts addressed two significant employee rest break issues in 2016:  (1) timing and (2) what is sufficient “rest” to be a legally compliant break. Employers must adapt their policies to address these new decisions.  


Rest periods in California are regulated by wage orders issued by the Industrial Welfare Commission.  Employees are entitled to at least ten minutes of paid rest time per four hours worked, “or major fraction thereof.”  A “major fraction” is any work period in excess of two hours. Therefore, for example, an employee with a 6.5 hour work schedule is entitled to two, paid rest periods. The wage orders mandate that rest breaks must be “in the middle of each work period” to the extent it is practical. Employers must “authorize and permit” compliant rest periods, but need not police whether employees take them.

Timing Issues

There may be times when timing a rest period in the middle of a four-hour work period is not practical.  Employees also wish to combine rest breaks with meal breaks.  The California Court of Appeal in Rodriguez v. E.M.E. Inc. addressed rest period timing.   The employer finishes parts used in the aerospace industry.  Given the nature of the finishing process, it takes ten minutes to prepare for a break and 10 minutes to ramp up production again once the break ends.  The employer, therefore, gave employees a single 20-minute rest period in every eight-hour shift (along with an unpaid meal period).  Rodriguez, an employee, sued, contending that the combined rest break violated the applicable wage order.  Reversing a trial court ruling in favor of the employer, the appellate court held that combining two rest breaks over an eight-hour period might be permissible, but only upon a showing that doing so is not detrimental to employees and that a traditional rest period schedule would impose a burden on the employer. The court emphasized that rest periods ordinarily must occur in the middle of a four-hour work period, and normally should fall on either side of a meal break.

Relief Issues

A security guard company required its guards to keep their radios and pagers on during their paid rest breaks in case a security emergency arose.  Employees brought suit, claiming this requirement was not sufficient “rest.” Although the employee did not prove breaks were interrupted, the trial court awarded a class of security guards over $90 million.  Agreeing with the trial court, the state Supreme Court, in a broadly-worded opinion, held that employers must relieve employees of all duties and relinquish any control over how employees spend their break time.  Even the potential for interruption that a policy requiring employee to remain on call is legally insufficient “rest.” Therefore, the employer owed the employees a premium of one hour’s wage at the employee’s regular rate of pay for every day the policy was in place during the relevant time period.  

Implications for Employers

These two court decisions require California employers to carefully draft rest break policies.  Rest breaks should not be combined, either with each other or with meal periods.  Nor should a ten-minute rest break be divided into smaller parts (such as two five-minute breaks).  A decision to deviate from the norm of providing rest breaks in the middle of each work period should not be taken lightly.  Courts will require employers to establish why this deviation is necessary and that it does not create a burden on employees. 

Employers should treat employees on rest breaks the same way they treat workers on meal periods. Thus, employees must be relieved of all duties and employers can no longer restrict employees’ whereabouts during rest periods.  Employees who wish to leave the work site to run personal errands during rest breaks (or meal periods) should be allowed to do so.  (However, employers retain the right to discipline employees who return to work late from breaks.) 

Steps Employers Should Consider

Policies should clearly state that employees must take rest breaks and are prohibited from being available for work during rest breaks.  Employers may wish to prohibit employees from remaining in work areas during rest periods (while ensuring that suitable resting facilities are available), to avoid the possibility that a phone call or co-worker might interrupt the break period.   Employers should create a method for employees to claim missed rest periods.  Employers should consider disciplining employees who consistently miss their breaks. 

Should an employee’s rest period be interrupted for any reason, the employer should provide another rest period to replace the interrupted one or pay the employee the one-hour wage premium.  Indeed, should it become necessary to even potentially interrupt an employee’s rest period (such as asking that they keep their cell phones on so as to not miss an important call), the employee should be given a replacement break period or the one-hour wage premium. 

These changes will require management training and consideration of shift coverage.  Supervisors must be made aware of their obligation to relieve employees of all duties during breaks.  Because meal and rest period rules apply to non-exempt supervisors as well, employers must think through how to provide adequate supervision of staff while supervisors themselves take uninterrupted breaks.  Although the challenges complying with these court decisions may be daunting, the risk of non-compliance is even more so.