In my (currently) very small answering service business, we often have slack periods that may be an hour or more with the operators having nothing to do but watch tv or play on the Internet. Can these count as rest periods even though the operators need to be able to handle a call if it comes in?

As another option, what about if during a scheduled rest period an operator needs to take a call. Can the rest period then start again?

As an example, an operator is scheduled to take a 10 min rest period at 10 AM but needs to remain available. Say that at 10:05 a call comes in and the operator takes it. Then at 10:10 the call is finished and the operator starts taking the rest period again and this time nothing happens. Does this count? Or is the fact that the operator needed to be able to work make it not a "rest period"? (Think of this as similar to an "on duty" meal period.)

Does any of this work? Since I can't afford more operators, my only others options are to miss calls (bad since it would quickly put me out of business) or to pay the operators the 1 hour penalty for missed rest periods.

Finally, a question about the penalties. If an operator misses both a meal period and a rest period in a day, is that two penalties? If they miss a meal period and both rest periods of their shift, is that three penalties?

Thanks

Charley

Slack time is not a bona fide rest period and neither can you asking your employees to be "on standby" a break.

There is to only be one penalty per type of break violation per day, i.e. if you miss 2 meal periods and 3 rest periods in one day you would only get paid 2 additional hours @ your regular rate, one for the meal violations, and one for the rest violations.

All that aside, I don't see why you can't just give a break to one individual at a time. Will the ten minutes of said employee gone make such a large impact?

Thanks for your answers Villain. That clarifies a few things.

We are very small and only have a few clients right now. Hopefully we will grow. In the meantime, we only have (and can only afford) one employee during a number of shifts (especially the 11pm-7am shift and sometimes other shifts). So when we only have one employee, there is no other employee so that we can stagger the rest breaks.

As a comparison, an equivalent situation is an all night convenience store or an all night gas station with only one employee. What do they do to give that employee a meal break and rest break. For the meal break, they make it a "on-duty" meal break and pay the person. For the rest break, what do they do? That is why I asked about "slack time" because there are often times when the person has nothing to do for an hour.

Also, I am trying to understand whether I can require the meal break to be a paid, on-duty meal break. I know that in California, they have to sign an agreement to that and the can "revoke" the agreement. I also know that in California, employment is "at-will" and that I can fire anyone for almost anything. Can I make the "on-duty" meal break a requirement of that job and fire someone who won't agree to it or who revokes their agreement? Again, what do all-night convenience stores do in this situation?

Thanks in advance.

Charley

I am not sure about making on duty meal periods a requirement for employment, but you will need to pay one extra hour for not giving rest breaks.

It sounds like, according to this site, you can be asked to pass on a meal or regular break, but if that happens, you are entitled to premium pay (time and a half) on top of your regular hours pay, an hours premium pay for every day you are denied a regular break period, and it appears a half an hour, or an hour of premium pay for missed lunch, not to exceed two hours for missed breaks. This link will explain in detail, and you can go to the labor board, mentioned in this site, for up to 3 years of backpay for this, if it has not been given to you.

http://www.las-elc.org/mealsbreaks.pdf

I am not sure about making on duty meal periods a requirement for employment, but you will need to pay one extra hour for not giving rest breaks.

And at premium pay.

That fact sheet is good but a bit misleading, IMO. Time and one-half is required for hours worked. Missed meal and rest periods are payable at one hour at your regular rate of pay. Thus, if you were suffered to work 8 hours straight, w/o any breaks (8am-4pm), you would be entitled to 2 hours wages at your regular rate of pay.

charley000: Our employees have slack periods that may be an hour or more with the operators having nothing to do but watch tv or play on the Internet. Can these count as rest periods even though the operators need to be able to handle a call if it comes in?

As a telephone answering business, you are generally going to be goverened by the provisions of IWC, Wage Order 4 http://www.dir.ca.gov/IWC/IWCArticle4.pdf. As a general rule, employees are entitled to rest breaks that uninterruptible and duty-free (e.g., no telephone answering services during the rest period). There is, however, a special provision in the Wage Order (See Item 17) that allows you to petition the Labor Commisision for an exemption from the duty-free requirement. The Labor Commissioner is authorized to grant you an exemption upon a showing that "it would not materially affect the welfare or comfort of employees." From the information you have provided, seems to me you would qualify.

charley000: Also, can I make the "on-duty" meal break a requirement of that job and fire someone who won't agree to it or who revokes their agreement?

You asked this very same question on another recent thread http://www.laborlawtalk.com/showthread.php?t=175324. According to your own account, "I finally got through to the Department of Labor Standards Enforcement in California. The answer from the guy at the DLSE was probably not. It must be a voluntary agreement. It might be considered a retaliatory firing. He said I would probably get myself in big trouble." I followed up by concurring with the DLSE's assessment. Hasn't this question been put to bed?