Labor Law Office, APC

Can Employers Require On-Duty or On-Call Rest Periods?

California’s Industrial Welfare Commission Wage Orders require employers provide paid rest periods at the rate of ten (10) minutes for every four (4) hours worked, or major fraction thereof. The Labor Code Section 226.7 provides that if an employer fails to provide the rest periods, the employer must pay an additional hour of pay for each day a rest period was not provided.

Issues frequently arise over the issue of whether a rest period was “provided”. Some employers have required employees to take their rest periods while they remain on duty or on call. This could occur, for example, with restaurant workers who are given breaks, but required to monitor customer traffic and return to work early if customers need attention. As another example, on-call breaks could occur with security guards who are required to monitor their radios and take calls while on their break.

The California Supreme Court in Augustus v. ABM Security Services, Inc., has reiterated that employees must be relieved of all work and control during their rest breaks. Employers can’t dictate how employees spend their time while on a break. If an employer requires employees to remain on-duty or on-call, then essentially the employer has required the employee to work for free. In the ABM case, the employees were required to keep pagers and radios on, be vigilant and able to respond if needed. The court concluded that the employees were not relieved of all duty because the employer had retained control over the employee.

California generally requires meal periods be provided after not more than five (5) hours of work unless the workday is completed in six (6) or less hours. The meal period rules allow “on-duty” meal periods under limited circumstances where there is a written revocable agreement and the nature of the work prevents employees from being relieved or their duties. Many employers mistakenly believe that the limited circumstances allowing on duty on-duty meal periods, also apply to rest breaks. However, the exceptions do not usually apply. Within the Wage Orders, there are specific exemptions for some employment, such as certain child care workers, employees of 24 hour care facilities for the aged, blind or developmentally disabled, etc. Those employers may require employees to remain at the worksite and supervise residents during their rest periods, only if the employee is solely in charge of residents. If an interruption occurs, the employee must be provided another rest break.

If you believe your employer is violating the break laws, you should seek legal advice.

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Labor Law Office, APC

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