Our employees (at a retail store) work an 8 hour shift with lunch scheduled on the 4th hour. They are required to take it before the 6th hour. They are permitted to take a 15 min. break on the 2nd and 6th hour. HR says, however, that we are only required to allow employees the "opportunity" to take a break.

I've read, on these boards, where an employee must be permitted a rest break in the middle of a shift, or, in this case, the 4th hour. Here, that's when lunch is scheduled. How does/does this effect the legal requirement that employees be permitted a rest break?

Also, we have employees who opt to take their break 15 minutes before clocking out for the day. May we require the break be taken on a certain hour? Or is this all moot?

The retail store in question is located in So. Cal.

Help, advice is appreciated.

I can not give specific advice to your particular situation, but the following is a general idea of how the law works:

The requirement is not to take rest breaks in the middle of a SHIFT, it is to take the rest breaks in the middle of a WORK PERIOD, if practicable. The meal period splits the shift into two work periods. Each work period is 4 hours. As such, the breaks should be taken, ideally, on the 2nd and 6th work hours of an eight hour shift.

The wage order state that employers "shall authorize and permit all employees to take rest periods." There is no direct requirement that the employee actually take one. Of course, rest breaks are still considered time worked and the employee gets paid for them, so it is hard to see employees "voluntarily" giving them up on a regular basis.

Meal and break requirements are covered in the Department of Labor Standards Enforcement Manual, Paragraph 45. The interpretation (1986.01.03) by the Department of Labor is 10 miuntes of time free from work for every 4 hours. To see a copy, go to DLSE at (www.dir.ca.gov), find the DLSE enforcement manual under documents and look up paragraph 45 and it will have the requirements as set forth by the Dept. of Labor.