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.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)