Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

California Employee Rest and Employer Penalty/Premium Payment

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • California Employee Rest and Employer Penalty/Premium Payment

    Under California Labor law regarding employee Rest breaks, if I were to work 7 hours, I believe I should get 2 rest periods. If true, then what happens if I fail to take the 1st 10 minute rest period within the first 4 hours?

    Do I get to take 20 minutes say in the 6th hour?

    Or did I "forfeit" my 1st rest? Does the employer pay Premium/Penalty Pay for me missing my "Rest Window"?

  • #2
    California Employee Rest and Employer Penalty/Premium Payment

    When exactly must an employer pay Premium/Penalty pay related to Rest periods? If an employer lets the employees, in general, know that they can and should take rests according to law and the employees do not take the rest.. then is the employer required to pay the penalty pay?

    The law does not require that employers record employee rests periods. However, if employers do not track rest periods, how would they be able to determine penalty pay? This has me confused.

    Comment


    • #3
      When exactly must an employer pay Premium/Penalty pay related to Rest periods?

      When the DLSE orders them to. Until then, I don't believe it's quite clear.

      If I am not mistaken, there is currently a case affecting this issue under review by the state Supreme Court, which hopefully will sort this out.
      Last edited by cbg; 05-24-2011, 08:30 AM.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

      Comment


      • #4
        Agreed that a 7 hour work day means two 10 minute breaks.

        Disagree that if you choose to not take a break that the employer is subject to penalties.

        http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm
        Last edited by DAW; 05-26-2011, 07:53 AM.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          The Brinker case at the CA Supreme Court is actually lunch related, not breaks.

          There are two different threads with answers. Could a moderator please combine them?
          Last edited by DAW; 06-07-2011, 07:41 AM.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Thanks for the clarification, DAW. Threads combined.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              Thanks for the response. I actually did break the penalty question out to another post because I didn't want the penalty to confuse my first question.

              As we agree that 2 10 minute periods are provided having worked 7 hours. If I did not take the 1st rest within the 4 hours, does it carry over into, say, the 6th hour where I can take 2 10 minute rests within the 6th hour?

              (So never mind the penalty part of my question).

              THANKS!

              Comment


              • #8
                There is nothing in the law that allows you to automatically take one twenty minute break instead of two ten minute ones. If you miss your first break, it is up to the employer whether to allow you to add the time onto your second break. The law says, one ten minute break for every four hours worked or major fraction thereof. It does not say, twenty minutes to be taken whenever and however you want.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  Background: I am not asking from an employee perspective. I am a software developer who has been asked to implement California Meal & Rest enforcements into an existing system. Unfortunately, to properly implement in software code, all the fine details must be explored. :-) Hence my obsessing over details :-D. I have read all of the material available including the DLSE Manual and current legal briefs (Brinker included). There is still, however, much of grey area for me.

                  Really appreciate your, and others, feedback and opinions! Now back to the post...

                  Obviously the law does not say allow for "twenty minutes to be taken whenever and however you want". That would be silly and wasn't really my question. I guess that is the question: Once a 10 minute break is provided by law (as in every 4 hours), then is it a "Use it or Lose it" situation? In the 6th hour, am I still entitled to 2 10 minute breaks? (Obviously, in any case, employee coordination with the supervisor for when breaks are taken is assumed).

                  Comment


                  • #10
                    You may feel the "twent minutes whenever I want" sounds silly but yet we get that type of question on this board every day.

                    Since you were unclear in your original post that is how it came across.

                    Comment


                    • #11
                      I do understand. Hence why I wrote about my background to differentiate from those asking questions in hope of justifying their position (one way or the other). My intent is to best understand the law and ensure I frame it within an IT system with the least likely liability for the user (in this case generally an employer). I meant no disrespect by using the word silly.

                      Comment


                      • #12
                        To ensure that this thread does not digress.. here is the open question.

                        Once a 10 minute break is provided by law (as in every 4 hours), then is it a "Use it or Lose it" situation? In the 6th hour, is an employee still entitled to 2x10 minute breaks?

                        Comment


                        • #13
                          From the DLSE:

                          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.

                          There is an exception for construction, drilling, mining, and logging industries. There, the breaks may be staggered to prevent and interruption in the flow of work and to maintain operations.

                          The authorize and permit wording could be a slippery slope should an employee not take a rest break and then claim that they weren't permitted to take such breaks. There is no provision for taking a longer break later in the workday. If a break isn't authorized or permitted, the employee is entitled to one hours pay at their regular rate of pay for each day that occurs. That pay is not a penalty but a wage due the employee. Please note that restroom breaks cannot be counted as rest breaks.

                          Comment


                          • #14
                            The CA-DLSE cite also says that following. I would take that as meaning that if the employee works exactly 6 hours, that only the one break is required, but if the employee works as many as 6 hours, 1 minute, that two breaks are required.

                            The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a "major fraction" of four
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

                            Comment


                            • #15
                              Thank you DAW and Worriedspouse for your response. DAW, your comment on the boundaries of the Rest period is excellent. I understand this to be the current DLSE position as well.

                              Worriedspouse, your comment brings up a point. You said, "The rest period is based on the total hours worked daily...". What happens if you work a split shift? For example, an employee works 8am-10am, then 5pm - 8pm. Total daily hours is 5 hours. However each shift is 2 and 3 hours respectively. If holding to the Daily Hours for determining rest periods, then in the second shift a break is possible in the hours of 5pm-6pm. From a common sense approach, this doesn't make much sense. Any thoughts?

                              Also Worriedspouse, I take it from your response that if an employee does not take their 10 minute rest within the appropriate time window, then they do lose it (meaning the employer is not legally obligated to provide them with that 10 minutes later in the day.) Is this a correct conclusion from your comment?
                              Last edited by chrisbga; 05-26-2011, 05:02 AM.

                              Comment

                              The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                              Working...
                              X