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Take 10: How to handle the California Labor Code mandate to provide midshift breaks

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in Compensation and Benefits,Employment Law,Human Resources

California’s Labor Code requires employers to give covered em­­ployees a 10-minute break or rest period during each four-hour work period, as close to the midpoint of the four hours as possible. The law says employers can’t require em­­ployees to work during rest periods.

If employers don’t provide re­­quired breaks, they must “pay the em­­ployee one additional hour of pay at the em­­­­ployee’s regular rate of compensation for each work day that the … rest period is not provided.”

Many em­­ployers have wondered how far they have to go to make sure employees take their breaks. For­­tu­­nately, the answer is that em­­ployers don’t have to physically force em­­ployees to take those breaks, as long as they don’t do anything to dissuade employees from taking them.

One good approach—recently viewed favorably by the Court of Appeal of California—is to put some of the onus on employees by requiring them to report missed breaks. Employers that do that and then promptly pay the penalty likely won’t be found to violate the law, even if employees miss breaks and don’t tell their employers.

Recent case: Luis Torres and other former and current employees of the Scripps Mercy Hospital emergency room sued over unpaid breaks.

They claimed that it was either impossible or impractical to take their breaks because of the type of work they performed. Essentially, they claimed that unless the breaks were literally scheduled, there was no way to take them.

The hospital said that it had clear rules in place that encouraged breaks and re­­quired employees who didn’t get a break to report it at the end of their shifts. Payroll rec­­ords added to the evidence, showing that whenever an employee did report a missed break, he or she re­­ceived an hour’s pay as compensation.

The court said that’s all the law requires.

Employers don’t have to guarantee that employees get their breaks; they just can’t interfere with the right to take the break. If em­­ployees ask, they either get a break during the four-hour period or re­­ceive the additional pay if that’s not possible. (Torres v. Scripps Health, No. D057583, California Court of Appeal, 4th Appellate District, 2012)

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