Ensuring Employee Rights: California’s New On-Premises Rest Break Policy

Using Your Break Periods as You Like

Imagine you have a break at work. While you may want to sit in the employee break room or cafeteria, many people enjoy other activities during their off-work periods.

For instance, even with a 10-minute rest break, you might want to go for a walk around the block to stretch your legs and get some fresh air. Or maybe you want to run to the corner for a quick errand at the newsstand or pharmacy when you’re not working.

A half-hour lunch break gives you even more time for yourself. Some workers use this time to:

• Pick up their kids at school
• Work out or do tai chi
• Visit with friends or family nearby
• Eat a meal at a restaurant
• Get a haircut or manicure
• Pick up dry cleaning or groceries
• Visit the public library

However, employers have pushed back against workers leaving the premises, saying they must remain on-site during breaks. This is actually illegal in California, and your employer could have to pay you extra if they’re caught not letting you leave the premises during your rest or meal breaks.

What Does California Law Say About Rest and Meal Breaks?

The law in California pertaining to work breaks is quite clear. Most employees are entitled to the following:

• If you work at least 3.5 hours in a day, you are to be given one paid 10-minute rest break.
• If you work more than 6 hours, you get a second paid 10-minute rest break.
• You are free to skip your rest breaks if you like, but your employer cannot pressure you to do so.
• If you work more than 5 hours in a day, you are also allowed to take an unpaid 30-minute meal break.
• If you work more than 10 hours, you should be provided with a second unpaid 30-minute meal break.
• You can waive your first meal break if you work less than 6 hours in a day.
• You can waive your second meal break if you work less than 12 hours and do not waive your first meal break.

But wait, there’s more!

In most cases, your work breaks must be uninterrupted by work duties (see exemptions below). No one can require you to answer phones, be on your computer, attend meetings, perform tasks, or see customers.

If you are interrupted and asked to perform any work duties during your meal break — even for a minute — your break needs to be counted as hours worked, and you must be paid for the 30 minutes.

If you are not given all 10 minutes of your rest break, you are to be paid for an additional hour of work time for the day.

Furthermore, you are free to leave the premises during either your 10- or 30-minute break. Your time is your own, and your employer cannot tell you to remain on-site. As long as you return to work at the appointed time, you can go outside, get food elsewhere, stop by your kid’s school, run errands, or exercise, for example.

Do You Have to Stay on Your Employer’s Premises During Breaks?

No! Read that paragraph above again, if necessary. You are allowed to leave your employer’s premises during breaks if you wish.

Why do some employers try to keep workers from leaving the premises? Usually, it’s because they want to take advantage of them being around in order to involve them in work duties, even when they should be on break.

Have you been told to “just answer a quick call” or “help out because it’s busy” during your rest or meal breaks? That’s a violation of the California labor code on your employer’s part.

Every so often, the issue of on-premises versus off-premises breaks is tested in the California courts. As part of a case called Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 in 2012, the California Supreme Court ruled that employees must be free to leave the work premises as part of a bona fide break.

More recently, in Estrada v. Royalty Carpet Mills, Inc., the California Court of Appeal’s decision supported the state Supreme Court’s reading of the law in Brinker. The carpet company was required to pay employees premium time for not letting employees leave during meals.

Who Is Exempt From Rest and Meal Break Laws in California?

As mentioned previously, there are some instances where employee laws regarding breaks and rest periods are different. These employees have their own laws:

• People who are the only employees on duty and can’t leave for breaks, like the baristas at coffee kiosks
• Security officers, whose absence would compromise the worksite
• Domestic employees and farm employees, who have their own break rules
• Truck drivers, who likewise have a unique set of laws
• People who work outside, like landscapers, must be given shade and water breaks as needed to prevent heat injury
• Some utility workers, such as electrical or gas utility employees
• Union members whose unions have negotiated other break arrangements
• Construction, mining, logging, and drilling workers, whose breaks may be staggered so as not to interrupt the flow of work
• Workers employed on certain types of fishing boats
• Healthcare workers who need to be available for medical emergencies

Also, certain types of exempt employees who meet these criteria have different rest and meal break laws:

• Earn a monthly salary at least twice the minimum wage for full-time employment
• Have job duties that require regular use of discretion and independent judgment
• Have more than half their work as administrators, managers, professionals, or executives

What Should You Do if Your Employer Is Violating California Break Laws?

You can talk to the business owner, a manager, or the human resources (HR) department if you believe your employer is not giving you your proper breaks as required by law. Remember, you are entitled to:

• Breaks uninterrupted by work
• The right to leave the work premises during breaks

Your employer cannot discourage you from enjoying these rights.

If you make no headway or think your employer is intentionally violating the labor code, you should talk to an employment attorney.

How can an employment lawyer help if your employer is making you stay on the premises during breaks or interrupting your breaks?

At Employee Law Group, we know the fine details regarding employment laws in California. We can answer questions like:

• Is your employer violating the law?
• Is your employer committing other violations, like retaliation or discrimination?
• How can you document your employer’s violation of your rights?
• Should you file a complaint with the state?
• Should you pursue a lawsuit in court to get the money you are owed?
• How much is your case worth?
• How long will it likely take to get back pay or other money if you win in court?
• Do you have the basis for a class action suit with other employees?

If you decide to go to court, we can represent you and handle many of the tasks for which you probably don’t have the time or resources. Our goal is to stop the employer’s violation of your rights and help you get any money to which you’re entitled.

You pay nothing unless we recover on your behalf. And your first consultation is free, with no obligation to go further. But you will know where you stand and what your options are.

We assist workers in the Los Angeles area. To set up your appointment with Employee Law Group, call us at 310-407-7358, or reach out online and let us know how we can help.