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Must I Stay Or Can I Go Now? New DLSE Guidance on California Rest Breaks

Published by on January 8, 2018

DLSE issued updated guidance on rest breaks indicating employers may not require employees to remain on premises during breaks.

This is an update to a previous blog post on California rest breaks and the Augustus v. ABM Security Services, Inc. case. In that case, the California Supreme Court held that an employer must relinquish any control over how employees spend their 10-minute rest break. That was interpreted to disallow “on-call” rest breaks where an employee must respond to business or customer concerns if necessary. Although the Court noted that there is a practical limitation on an employee’s movement because rest breaks are only 10 minutes in length, the Court’s decision did not expressly hold that an employer’s instructions to remain on-site during rest breaks was unlawful.

Recently, the Division of Labor Standards Enforcement (“DLSE”) updated its Frequently Asked Questions webpage, answering the question “Can my employer require that I stay on the work premises during my rest period?” In short, the answer is “no.” Referencing Augustus, the DLSE stated that “during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”

This interpretation is a change from the previous understanding that employers could require their employees to remain on the premises during short rest breaks. The DLSE notes, as a practical matter, that an employee with a 10-minute rest break is essentially limited to a five-minute travel distance before he or she would have to travel back to the premises.

In California, paid duty-free rest periods must be provided to non-exempt employees at a daily rate of 10 minutes for every 4 hours, or major fraction thereof (meaning more than 2 hours). Employees who work less than three and a half hours per day are not entitled to rest breaks. Thus, employees are entitled to rest breaks as follows:

  • 10 minutes for shifts from 3.5 to 6 hours long.
  • two 10-minute rest breaks for shifts of more than 6 to 10 hours long.
  • three 10-minutes rest breaks for shifts of more than 10 to 14 hours.

To the extent practicable, rest breaks should occur in the middle of work periods.

Welter Insights

To comply with this new administrative guidance, California employers should ensure that their policies allow employees to take rest breaks off work premises, if desired. Although the DLSE does not create law or binding precedent, its interpretations of law are used by courts to interpret the various meanings of wage orders. DLSE is also responsible for the enforcement of wage orders and labor law, thus, its interpretations should concern California employers.

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