on July
15, 2016
Friday is here already? Today’s post is a
review for many experienced operators in California, but surprisingly I’ve been
getting a lot of questions about 10-minute rest breaks recently by a lot
of employers. So I thought I would have a refresher post for today’s
Friday’s Five about some requirements about 10-minute rest breaks under
California law:
1. Timing of rest breaks
The 10-minute rest break must be provided to
employees who work over three and a half hours. Employers must authorize
and permit employees to take 10-minute rest breaks for every four hours worked,
or “major fraction” thereof. A “major fraction” of four hours is anytime
more than two hours. Insofar as practicable, the rest breaks should be in
the middle of each four-hour work period.
2. Rest breaks must be paid
The rest period is considered time worked and
must be paid. But since employees are paid for their rest breaks, they
can be required to remain on the employer’s premises.
3. Rest breaks need to be “authorized and
permitted”
Employers are required to “authorize and permit”
rest breaks, and there is no affirmative duty for employers to require that
employees take rest breaks. Employers need to ensure that they do not
interfere with an employee’s ability to take the rest break, and if the demands
of work are such that employees cannot take the rest break, employers should
have a system in place to compensate the employee the applicable “wage premium”
of one hour of pay at the employee’s regular rate of pay for any violations.
4. Rest breaks do not need to be recorded
Unlike the 30-minute meal breaks, the 10-minute
rest break does not have to be recorded in the timekeeping system.
5. Piece rate employees must be paid separately
for rest breaks
Employers who paid employees on a piece rate
basis need to ensure they comply with Labor Code section 226.2, which took
effect in January 2016. Under Labor Code section 226.2, employers who
paid employees on a piece rate basis must pay employees for “rest and recovery
periods and other nonproductive time separate from any piece-rate
compensation.” The law requires employers to calculate the regular rate
of pay for each workweek, and then pay the piece-rate employees the higher of
this regular rate of pay or the applicable minimum wage for rest break
time.
The law also requires employers to pay piece-rate employees for
“nonproductive time” which is defined as “time under the employer’s control,
exclusive of rest and recovery periods, that is not directly related to the
activity being compensated on a piece-rate basis.” The nonproductive time
is required to be paid at a rate no less than the applicable minimum wage
rate. In addition, employers who pay employees on a piece-rate basis need
to report the pay for rest breaks, recovery periods, and nonproductive time
separately on the employees’ pay stubs. Employers with piece rate
employees should consult with experienced counsel to ensure the correct amounts
of time are being calculated and paid for under this law.
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