* * * Updated for January 1, 2022
California’s Rest Break laws can be difficult for any business to wrap its head around. With California’s laws constantly changing and multiple sources of authority all weighing in on what employers must do, it can be easy to get a headache trying to comply.
Our guide below covers the most common rules and FAQs for businesses seeking straightforward guidance on the issue:
The Basic Rules
- Workers are entitled to a rest break of at least 10 minutes for every 4 hours worked
- The rest break must be provided after the 2nd hour of work
- Rest breaks must be paid
- You can require workers to stay on premises during rest breaks
- Workers cannot be required to work during rest breaks
- Workers cannot be “on call” during rest breaks
Please keep in mind that the rules are different for certain construction-type jobs, such as drilling, loggin, mining, etc., and employers can stagger rest breaks to avoid interruption in the flow of work and to maintain continuous operations.
California’s rules are more stringent than the federal rules (FLSA). Which rules do we need to follow?
California’s rules. California law is more protective of employees than federal law, and if your business has employees in California, then your business will need to follow California’s rules.
What happens if our business does not comply?
If your business is not providing the right amount of rest breaks to employees as often as required, then it is responsible for paying one (1) extra hour of regular pay to employees for each day a rest break violation occurred. In addition, this can trigger additional penalties for missed pay as well as penalties for inaccurate wage statements. A small infraction can result in a significant amount, which can then multiply exponentially depending on how many employees your business has had over the last 3 years.
What is the statute of limitations for a wage and hour claim in California?
Up to 3 years backwards from the date of the violation.
Are employees required to clock in and clock out for rest periods?
There is no requirement that your business make employees “clock in or out” for rest breaks, but practically speaking, doing so makes it dramatically easier to show that your business has actually been providing employees with rest breaks. Otherwise, if your business faces a wage/hour lawsuit, it could be much harder to show that employees have actually been taking rest breaks, and it will be a case of your word versus theirs. Many employers prefer to use clock-in/clock-out or other forms of automatic time-cards to avoid relying on employees manually writing in their time (which can be less accurate).
Can Employees work through rest breaks and leave early?
No. If an employee chooses to work through a rest period, they are not entitled to leave early.
Is the rule different for smokers?
No. Smokers are not entitled to more breaks or different breaks.
Will the rest break be used up if an employee takes a bathroom break?
No. The California Industrial Wage commission is clear that rest breaks are not limited to bathroom breaks and are not to be confused with bathroom breaks. California law requires employers to at all times provide bathrooms for employee use during all work hours. The California Department of Labor prohibits employers from requiring that an employee’s use of bathroom count as a rest break.
How much are the monetary penalties apply if there are violations of wage and hour rules?
There are a number of penalties that come into play if California’s labor laws are not respected:
- Labor Code (Section 558) Penalties. $50 for the first violation of employees that are underpaid in a pay period, and $100 per subsequent employee / pay period.
- Waiting Time Penalties. An employee that does not receive all wages to which they are owed can seek “waiting time penalties,” which are, a full day’s wages for each day that the wages remain unpaid, up to a 30-day maximum period.
- Recordkeeping Requirement Penalties. If the employee’s time records are not correctly kept, the civil penalty is $500 for failing to keep records.
- Attorneys’ Fees, Costs, Interest. Wage/hour claimants are also entitled to attorneys’ fees, costs, and interest.
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