California Employment Law Refresher: Meal Periods, Rest Periods, and Premiums (Part 2)

This week’s legal update is intended to provide a refresher regarding employers’ rest period obligations. Last week’s legal update addressed meal period obligations and a subsequent legal update will address premium payments.

In California, all employers must authorize and permit paid rest periods for all nonexempt employees who work a period of at least 3.5 hours. This means employers must provide employees with the opportunity to take rest periods and must not impede or discourage them from doing so. At the end of 2016, the California Supreme Court ruled in Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257 (2016), that requiring employees to remain on-call does not satisfy an employer’s obligation to relieve employees from their duties and employer control during rest periods. As a result, in almost all cases, employers must allow employees to leave the premises during their rest periods with exceptions provided by some Industrial Welfare Commission (IWC) Wage Orders, e.g., for sole charge employees working in certain residential care facilities.

In theory, the Wage Orders provide the opportunity for employers to seek an exemption from some of their provisions, including the requirement to provide rest periods, if doing so would not materially affect the welfare or comfort of employees and if enforcing the rest period requirements would work an undue hardship on the employer. Such requests must be made to the Division of Labor Standards Enforcement (DLSE). In practice, however, these exemptions are rarely granted and, even when they are granted, are not always renewed.

As with meal period claims, however, there are exemptions for certain industries with a valid collective bargaining agreement containing specific elements, among other industry-specific exceptions.

Where required, rest periods must be at least 10 minutes for every four hours worked or major fraction thereof. The DLSE considers anything more than two hours to be a "major fraction" of four hours. As a general rule, each rest period must take place in the middle of each four-hour work period. Because rest periods are paid, employees do not clock out and remain on the clock. As a result, documentation for rest periods is not as clear as that for meal periods in most cases. Some employers include a section at the bottom of each timesheet where employees affirm one of the following occurred: (1) the employer authorized and permitted all statutory rest periods during the respective time period; or (2) the employee notified the employer in writing before the pay period ended for each statutory rest period that was not properly authorized and permitted. This enables employers to know with more certainty when the obligation to issue premium payments arises and to counsel supervisors and employees about ensuring rest periods are made available to employees.

Special rules apply for employees compensated on a piece-rate basis to ensure employees are compensated for rest (and recovery) periods and other nonproductive time separate from any piece-rate compensation, including rules regarding documentation on wage statements. More information can be found here.

In addition to rest periods, California employers must provide recovery periods in certain situations. Recovery periods enable employees to take a preventative cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating. Employers must provide access to shade, must encourage employees who need a recovery period to remain in the shade, and must not order employees back to work until signs or symptoms of heat illness have abated (in no event less than five minutes in addition to the time needed to access the shade). More information about recovery periods can be found here.

If it is determined that an employer violated its rest (or recovery) period obligations, the same premium payment obligations and derivative penalties apply as discussed in last week’s legal update regarding meal periods, as do the same statutes of limitation.

While rest periods may seem like the “little sibling” to meal periods, they nonetheless pose the potential for liability if employers do not put systems in place to ensure all nonexempt employees are authorized and permitted to take them. It is always appropriate for employers to review their policies and procedures, and actual practices, to ensure compliance.

This legal update and any use of its information does not create an attorney-client relationship. Nothing contained on this website should be considered legal advice for any specific employer or employment situation. Consult legal counsel before taking any action as a result of information contained herein.