Rest Periods/Lactation Accommodation Revised 3/04/11 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. See Question No. 9, below, for information on how to file a claim to require your employer to provide time and a place to express milk. Under IWC Order 10-2001, 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. Pursuant to Labor Code Section 1030 every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission need not be paid. The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section. An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer. Lactation Accommodation-Labor Code translation-Spanish 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.

California Appellate Court Says Employers Do Not Have To Ensure Employees Receive Their Meal Breaks To Avoid Class Action Claims For Extra Pay. 3/13/11 A California court of appeal has backs employers, holding that the word “provide” should be interpreted according to its dictionary meaning of “to supply or make available.” In Tien vs. Tenet Healthcare an employee tried to certify a class action composed of hourly non-exempt employees who were denied 30-minute meal periods and ten-minute rest breaks. The appellate court said that Labor Code Section 226.7 states that “[n]o employer shall require any employee to work during any meal . . . period,”   The court also observed that “a corollary to an employer’s obligation to ensure that its employees are free from its control for 30 minutes is the employer must not compel the employees to do any particular thing during that time – including, if employees so choose, not taking their meals.” Where the employer has a policy of making such meal periods available, and does not prevent its employees from taking those breaks, the court found the employer satisfied its legal obligation. &The problem often arises when an employer permits meal and rest breaks, but as a practical matter the flow and volume of work make taking such breaks impossible without causing the employee to miss critical benchmarks.

The California Court of Appeal finally found in favor of California employees on Wednesday.  In United Parcel Service, Inc. vs. Superior Court the court held that California Labor Code section 226.7 permits an employee to recover up to two premium payments per work day: one for failure to provide a meal period and another for failure to provide a rest period.   Labor Code section 226.7 provides:   (a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.   (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.   Looking to the language of the statute: “for each work day”, employers have long argued that under California law, an employer is only obligated to pay a maximum of one premium payment per work day regardless of the number of missed meal and rest periods occurring on a given work day. Following the recent federal court decision in Marlo v. United Parcel Service, Inc., 2009 U.S. Dist. Lexis 41948 (C.D. Cal. May 5, 2009), the court however, disagreed.   In reaching its decision, the court took note of the language in the IWC Wage Orders, noting that the Wage Orders treat meal periods and rest periods in separate sections, and each section provides for an additional hour of pay per work day for the designated type of violation. The court reasoned that permitting the recovery of two premium payments under Section 226.7 would draw consistency between Section 226.7 and the applicable Wage Orders. The court also held that allowing recovery of two premium payments per work day would further the intent behind Section 226.7 of providing “an incentive to employers to comply with labor standards and compensate employees when those standards are violated.”   The ruling will likely be appealed, but employers should evaluate their meal and rest period compliance.

New Developments in Employment Law   See Steve's Blog for updated information about the Brinker case and other new legal developments concerning wage and hour law and beyond that have either gone into effect during 2008 or will go into effect beginning January 1, 2009.  Meal and rest break violations have been a fertile area for lawsuits in recent years.  We have represented dozens of other employees and employers in individual and class action cases involving meal and rest break violations. Murphy vs. Kenneth Cole Productions   What does this case mean? The good news for employees is that a missed meal or rest break is now legally a wage and not a penalty. This ruling is significant. For every meal and rest break denied, an employee can receive one hour of pay up to the statutory period of 3 years. Add in a claim for violation of Business and Professions Code Section 17200 et seq.,and you can add a fourth year to your claim. Prior to this ruling, the Labor Commissioner and the courts considered a missed meal and rest break a penalty for which an employee could receive one hour of pay, but the statutory claim period was for one year, instead of 3 or 4. While this will no doubt empower employees seeking unpaid compensation, it send a message to all California employers: pay what is owed or the penalties will be stiff. Call the Law Office of Steven Kesten: 415-457-2668   See Steve's Blog for information on the Brinker case and the full text of an important new memorandum prepared by the California Labor Commissioner.  Since we posted the Labor Commissioner's memo in 2008, the law on meal and rest break violations is uncertain as we await the California Supreme Court's ruling in the Brinker case.