State:

National
The Fair Labor Standards Act (FLSA) does not require rest or meal periods, except as amended under the Affordable Care Act (ACA) for nursing mothers, but it does set standards for when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time. Many states, however, require paid and/or unpaid meal and/or rest breaks.
Please see the state Rest Periods section.
The ACA amends the FLSA to require that employers provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth, each time the employee needs to express milk (29 U.S.C. Sec. 207). Employers must now provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for this purpose. The law does not require employers to pay employees for the break time. The requirement does not apply to employers with fewer than 50 employees, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. These provisions do not preempt a state law that provides greater protections to employees.
Unpaid breaks. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. The Department of Labor (DOL) states that breaks for expressing milk would not properly be considered Family and Medical Leave Act (FMLA) leave or counted against the FMLA leave entitlement. The DOL encourages employers to permit nursing employees to make up unpaid break time.
Frequency and duration. According to the DOL, the frequency of breaks needed to express milk varies, depending on factors such as the age of the baby, the number of feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. Therefore, the DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift and that longer shifts will require additional breaks to express milk. The analysis of reasonable time must also include the time it takes to get to the lactation site; the time it takes to gather, set up, and clean a breast pump or other supplies; and the time it takes to secure and store the milk. The DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express milk.
Exemptions. Smaller employers with fewer than 50 employees are exempt from the break time rule only if the employer can demonstrate that compliance with the statute would cause the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” All the employees of an employer are counted for the purpose of determining whether the employer meets the 50-employee threshold. This is a difficult standard to meet. These provisions do not preempt a state law that provides greater protections to employees.
The amendment does not apply to white-collar exempt employees (29 U.S.C. 213(a)) or certain employees within particular industries or individuals who hold specific positions (29 U.S.C. 213(b)). To the extent employers choose, nonetheless, to provide these rest breaks to salaried exempt employees (as it is expected most employers will do), they should not seek to make deductions from salaries for lactation breaks. Salaried exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide.
State laws. Most states have passed legislation that explicitly allows mothers to nurse/express milk in public or in semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Many states allow working mothers to nurse their children and/or to express milk during working hours. Some state laws require that employers provide reasonable time for an employee to nurse or express milk or to coordinate designated break times to coincide with the employee's need to nurse or express milk.
Please see the state Maternity and Pregnancy section.
U.S. Department of Labor Wage and Hour Division regulations do specify when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time subject to federal minimum wage and overtime requirements (29 CFR 785.18 through 785.23).
Bona fide meal periods. Employers are not required to pay employees for time spent during bona fide meal periods. Bona fide meal periods are ordinarily breaks that last at least 30 minutes, but they may be shorter under special conditions. They do not include coffee or snack breaks; these are rest periods that may have to be counted as paid work time.
Free from duty. During such an unpaid meal period, an employee must be completely relieved from duty for the purpose of eating a regular meal. It is not necessary that an employee be permitted to leave the premises if he or she is otherwise completely freed from duties during the meal period. An employee who is required to perform any duties, whether active or inactive, while eating is not considered to be completely relieved of duties. For example, an office employee who is required to eat at his or her desk or a factory worker who is required to be at his or her machine is working while eating. Some courts, however, have not required that the employee be completely relieved from duty during bona fide meal periods. Instead, they examined whether the employee's time is spent predominantly for the employer's benefit.
Firefighters. Meal periods must be counted as paid work time for firefighters employed on tours of duty of 24 hours or less. This applies only to firefighters who are exempt from overtime because they are employed on a tour-of-duty basis, as defined in section 207(k) of the FLSA (29 CFR 553.223, 29 USC 207(k)).
Short rest breaks of 5 to 20 minutes are common in the workplace. Rest breaks are not required by federal law, but if they are offered they must be counted as paid work time. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Many states require paid and/or unpaid meal and/or rest breaks.
Please see the state Rest Periods section.
If state law requires a short (20-minute-or-less) rest period, federal law requires that it be counted as paid work time.
Under certain conditions, sleeping time is paid work time. Different rules apply depending on whether the employee is on duty for fewer or more than 24 consecutive hours.
Less than 24-hour duty. An employee who is required to be on duty for fewer than 24 hours is working, even though he or she is permitted to sleep or engage in other personal activities when not busy. For example, a telephone operator who is required to be on duty for specified hours is working even though he or she is permitted to sleep when not busy answering calls. It makes no difference that the operator is furnished facilities for sleeping. The operator's time is given to her employer. She is required to be on duty and the time is work time.
Duty of 24 hours or more. When an employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude from paid work time meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished by the employer, and the employee can usually enjoy an uninterrupted period of sleep. If the sleeping period is more than 8 hours, only eight hours will be excluded. If there is no agreement that the time not be counted, the 8 hours of sleeping time and meal periods are paid work time.
If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get at least 5 hours of sleep, the entire period must be counted as working time.
Employees residing on employer's premises. Employees who reside on their employer's premises on a permanent basis or for extended periods are not considered to be working all the time they are on the premises. Ordinarily, they have periods of complete freedom from all duties and enough time for eating, sleeping, and entertaining. It is difficult to determine the exact number of hours worked under these circumstances, so any reasonable agreement of the parties that takes into consideration all the relevant factors will take precedence.
Last updated on February 9, 2016.
Related Topics:
California
Federal wage hour law does not mandate that employees be given either paid or unpaid rest or meal periods. Whether breaks are required is left up to the states.
U.S. Department of Labor Wage and Hour Division regulations do specify when provided work breaks, including meal periods, rest periods, and sleeping time, must be counted as work time subject to federal minimum wage and overtime requirements (29 CFR 785.18 through 785.23). Please see the national Rest Periods section.
Statutory requirement. Employees must be allowed a half-hour meal break during any work period of more than 5 hours per day. Employees may voluntarily give up their meal breaks if the workday does not exceed 6 hours (CA Lab. Code Sec. 512). Employees who work more than 10 hours per day must be provided a second meal period of not less than 30 minutes, except that if the total hours worked is less than 12 hours, the second meal period may be waived, but only if the first meal period was not waived. Under ordinary circumstances, the employee must be totally relieved of work duties during the meal period. However, if the nature of the work prevents the employee from being relieved during meals, the employer and employee may agree in writing to “on-duty” meal breaks. The employer must pay wages for any meal period in which the employee is not totally relieved of duty.
The California Supreme Court has ruled that it is an employer’s obligation to relieve its employees of all duty during meal periods, but that an employer does not need to ensure employees do not perform work during their break. It is the employees’ choice on how to spend their meal periods. The Court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees are not performing work during meal periods. Instead, under state law, an employer must provide its employees an uninterrupted 30-minute duty-free period that the employee can spend as he or she pleases. Absent a statutorily permissible waiver, a meal break must be afforded after no more than 5 hours of work, and a second meal period provided after no more than 10 hours of work (Brinker Restaurant Corp. v. Superior Court, S166350 (CA S.Ct., 2012)).
Work periods of more than 5 but no more than 6 hours per day. An employer may not employ an employee for a work period of more than 5 hours per day without providing the employee with a meal period of at least 30 minutes. Employers are not required to force their employees to use their meal period. Employers are required only to provide the break. If the total work period per day is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee.
Work periods of more than 6 but no more than 10 hours per day. A 30-minute meal period is required beginning before the work period exceeds 6 hours. (Example: Even if the meal period is provided in the first hour of work, and an employee works an additional 7 hours after the meal period for a total of 8 hours for the day, a second meal period need not be provided.)
Work periods of more than 10 hours per day but no more than 12 hours per day. An employer may not employ an employee for more than 10 hours per day without providing a second meal period of no less than 30 minutes. If the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived.
Work period. For purposes of the meal period requirement, a “work period” is the period of time during which an employee is subject to the control of the employer. A work period begins at the time an employee begins work and ends at the time the employee stops work for the day.
Meal period. For purposes of the meal period requirement, a “meal period” is defined as the period of time during which an employee is relieved of all work duties and not subject to the control of the employer. In all places of employment where employees are required to eat on the premises, a suitable place for that purpose must be designated.
How to satisfy the meal period requirement. An employer is presumed to have provided a meal period to an employee if the employer:
• Informs the employee of his or her right to take a meal period and the fact that he or she will suffer no retaliation for exercising this right;
• Makes the meal period available to the employee and affords the opportunity to take it; and
• Maintains accurate time records for covered employees, as required by CA Lab. Code Sec. 1174(d) and Industrial Welfare Commission wage orders or otherwise establishes by a preponderance of evidence that the meal period was in fact actually provided to the employee. (Note: Proving by a preponderance of evidence that a meal period was in fact actually provided does not relieve an employer of any existing obligations to maintain accurate time records under CA Lab. Code Sec. 1174(d) and applicable sections of the Industrial Welfare Commission wage orders.)
As an additional guarantee of compliance with the meal period requirement, an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period and get a written acknowledgment that the employee understands those rights.
Employers must permit employees to take a rest period lasting at least 10 minutes for every 4 hours or a major part of 4 hours. ("Major part of 4 hours" is defined as the period between 3 1/2 and 4 hours worked.) The break must be as close to the middle of each work period as circumstances allow. (Rest periods do not need to be taken in the middle of the work period if it would be impractical given the work situation.) Also, rest periods need not be timed to specifically fall before or after any meal period. For example:
• If the daily work shift is less than 31/2 hours, no break is required.
• If the daily work shift is 31/2 to 6 hours, one break is required.
• If the daily work shift is 6 to 10 hours, two breaks are required.
• If the daily work shift is 10 to 14 hours, three breaks are required.
Employers are not required to force their employees to use their rest break. Employers are required only to provide the break.
Wage deductions. Break time must be counted as hours worked, with no deduction from wages.
Recovery periods. Employees are entitled to a recovery period when they are working outdoors in temperatures over 85 degrees Fahrenheit. Employees must be allowed, and encouraged, to take a cooldown rest for at least 5 minutes when they feel the need to do so to avoid overheating.
Remaining on call during rest periods. On-call employees must be relieved of all duties during rest periods, except for under unexpected circumstances such as emergencies. Requiring an employee to carry a communication device and respond to calls during a rest period violates the law.
Employees paid commissions. Commissioned employees are entitled to separate compensation for rest periods. When a company pays an employee only a commission and the commission doesn’t account for rest periods, or when a company pays an employee on an hourly basis (including for rest periods) as a draw against future commissions but takes back that compensation in later pay periods, the employee isn't being separately compensated for rest periods in either scenario. Employers should review their commission-based compensation plans to ensure that they separately account for and pay employees for rest periods in compliance with California law. It isn't sufficient for a commission plan to pay employees a guaranteed minimum hourly rate as a draw against their future commissions.
Employers may not require employees to work during any of the meal or rest periods. An employer that fails to provide an employee with a meal period or rest period may be required to pay the employee an additional hour's wages at the employee's regular rate of compensation for each workday that a meal or rest period was not provided. The California Supreme Court recently ruled that the additional hour of pay is considered wages, not a penalty, and is subject to a 3-year statute of limitations (rather than the 1-year statute of limitations for penalties) (CA Lab. Code Sec. 226.7).
Employers are not required to force their employees to use their meal and rest periods. Employers are required only to provide the breaks.
Professional, executive, and administrative employees. The meal and rest period requirements do not apply to professional, executive, and administrative employees who either:
• Primarily do intellectual or creative work that requires the use of discretion or independent judgment and who earn a monthly salary equivalent to two times the state minimum wage for full-time employment; or
• Are licensed or certified by the state to practice law, medicine, dentistry, pharmacy, optometry, architecture, teaching, engineering, or accounting, or are engaged in an occupation commonly recognized as a “learned or artistic profession.” Registered nurses are not considered to be exempt professional employees under this provision.
Health and welfare. The Industrial Welfare Commission may adopt a working condition order permitting a meal period to begin after 6 hours of work if it determines that the order is consistent with the health and welfare of the affected employees.
Agriculture. The meal period requirement does not apply to an employee employed in an agricultural occupation covered by Industrial Welfare Commission Wage Order 14
Wholesale baking industry. The meal period requirement does not apply to an employee employed in the wholesale baking industry and who is subject to an Industrial Welfare Commission Wage Order and who is covered by a valid collective bargaining agreement that provides for a 35-hour workweek consisting of five 7-hour days, payment of 11/2 times the regular rate of pay for time worked in excess of 7 hours per day, and a rest period of not less than 10 minutes every 2 hours.
Motion picture and broadcasting industries. The meal period requirement does not apply to an employee employed in the motion picture and broadcasting industries and who is covered by Industrial Welfare Commission Wage Orders 11 or 12 and is covered by a valid collective bargaining agreement that provides for meal periods and includes a monetary remedy if the employee does not receive a meal period required by the agreement.
Canning, freezing, and preserving; products after harvest; and preparing agricultural products for market. A special provision in Wage Orders 3 (Canning, Freezing, and Preserving), 8 (Industries Handling Products After Harvest), and 13 (Industries Preparing Agricultural Products for Market) allows employers to exclude recess periods from hours worked if (1) the recess is at least 30 minutes long, (2) the employer notifies the employee of the time the employee must be back at work, (3) the employee is allowed to leave the premises, (4) there are no more than two work recesses in a single shift, and (5) the duration of the recess is 2 hours or less (Enforcement Policies and Interpretations Manual Sec. 47.3).
On-site construction, drilling, logging, and mining. Industrial Wage Order 16 states that an employer may (1) stagger rest periods to avoid interruption to the flow of work and to maintain continuous operations, (2) schedule rest periods to coincide with breaks in the work flow that occur in the course of the workday, and (3) designate where rest periods will take place, including the employee's immediate work areas. Rest periods need not be authorized when the interruption of continuous operations would jeopardize the product or process of the work, but in these cases, the employer must make up the rest period in the same workday or compensate the employee for the 10 minutes in the same pay period.
Residential care. Industrial Wage Order 5-2002 states that employers of group homes may require an employee to remain on the premises and maintain general supervision of the residents during rest periods if the employee is the sole person in charge of the residents. If the employee's break period is interrupted to respond to the needs of a resident, the employer must allow the employee to take another rest period. In addition, employees of group homes may be required to work on-duty meal periods when it is necessary to meet regulatory or approved program standards and either (1) the employee eats with the residents, receiving the same meal as the residents with no charge to the employee, or (2) the employee is the sole person in charge, and on a day shift, the employer provides a meal at no charge to the employee.
Certain healthcare employees. Employees in the healthcare industry who work shifts longer than 8 hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, a waiver must be in writing and voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least 1 day’s written notice. The employee must be fully compensated for all working time, including any on-the-job meal period while the waiver is in effect.
Every employer must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time may, if possible, run concurrently with any break time already provided to the employee. Break time that does not run concurrently with the rest time authorized for the employee may be unpaid (CA Lab. Code Sec. 1030). The employer must make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets these requirements.
For additional information, employers can contact any one of 19 offices of the Department of Industrial Relations, Division of Labor Standards Enforcement.
For a complete listing, visit their website at www.dir.ca.gov/dlse, or contact:
San Francisco office (Headquarters):
455 Golden Gate Avenue, Ninth Floor
San Francisco, CA 94102
415-703-4810
Los Angeles office:
320 West Fourth Street, Suite 450
Los Angeles, CA 90013
213-620-6330
Oakland office:
1515 Clay Street, Suite 801
Oakland, CA 94612
510-622-3273
Sacramento office:
2031 Howe Avenue, Suite 100
Sacramento, CA 95825
916-263-1811
San Diego office:
7575 Metropolitan Drive, Room 210
San Diego, CA 92108
619-220-5451
San Jose office:
100 Paseo de San Antonio, Room 120
San Jose, CA 95113
408-277-1266
Santa Barbara office:
411 East Canon Perdido, Room 3
Santa Barbara, CA 93101
805-568-1222
Last updated on April 4, 2017.
CT-WEB02
Copyright © 2017 Business & Legal Resources. All rights reserved. 800-727-5257
This document was published on http://Compensation.BLR.com
Document URL: http://compensation.blr.com/analysis/Compliance/Rest-Periods/California/