California Law: Work Breaks

California law requires that employers give their employees work breaks throughout the day. Some, termed rest breaks, are paid downtime, while others, like meal breaks and reasonable lactation breaks for nursing women, are off-the-clock personal time.

Federal law also provides some work break benefits, but state law provides more generous employee protections in terms of work breaks. California workers are entitled to benefit from the state's meal and rest break rules.

Federal law does not require that an employer give any employee a work break. It only mandates that, if work rest breaks are permitted, that the employer must pay the employee for the time off.

California law provides much more expansive benefits guaranteeing employees work breaks. These are found in the state labor code and require that employers give non-exempt employees meal breaks, rest period work breaks and work breaks to allow breastfeeding mothers to express milk.

Each of these benefits has its own specific rules regarding how it applies and who is protected. There are also rules addressing whether an employee can waive a permitted break.

Meal breaks in California are off-the-clock-time for an employee. Because of that, the employee must be free to do whatever she likes during this break including eating, lounging around or going for a walk or to run an errand.

A "non-exempt" employee is entitled to a 30-minute meal break if she works more than five hours in a shift. An employee who works a shift of more than 10 hours must be given a second 30-minute meal break. While the employer does not pay the employee for these meal break periods, they are mandated under state law.

If the employee works less than six hours in a day, the law allows her to waive the 30-minute meal break and simply work straight through. She can waive the second meal break if she is not working more than 12 hours that day, but only if she did not waive the first meal break. For example, if an employee is working an 11-hour shift, she has three options, which include:

• Waiving the first and taking the second meal break. 
  
• Taking the first and waiving the second meal break.
  
• Taking both.
  

California's labor regulations also require that employees be given rest breaks if they work more than three and a half hours in a day. These are rest periods that the employer pays for. The break time is included in the total time billed by the employee at the end of the day.

Under California law, an employee is entitled to a rest period of at least 10 minutes for each four hours he works or a "substantial fraction" of four hours. The courts have interpreted "substantial fraction" to mean anything over two hours. Lunch breaks do not count as rest periods.

That means that an employee putting in a regular eight-hour shift is entitled to both a meal break and two rest breaks. The meal break must be 30 minutes and the two rest breaks should total 20 minutes. Rest periods must be in the middle of the worker's shift, if possible, but meal breaks need not be at regular meal time.

It is easy to confuse rest breaks with restroom breaks, but they are not the same. The intention of the 10-minute rest periods is to allow employees to take a rest from work, not to use the bathroom. This is evident from the fact that the Industrial Welfare Commission requires suitable resting facilities be in an area "separate from toilet rooms."

That means that the fact that an employer lets employees use the toilet facilities during working hours does not fulfill the legal obligation of the employer to provide rest periods. Of course an employee is free to use the restroom on her rest break. But California policy prohibits an employer from requiring that an employee count every use of the toilet as part of his rest periods.

Only non-exempt employees are entitled to overtime and work breaks under California labor laws. Non-exempt employees include all employees not considered exempt under the statutes. There are several categories of exempt employees.

The largest group of exempt employees is white-collar workers employed in a position that requires them to exercise discretion and independent judgment. These jobs are defined as intellectual, administrative, managerial or creative work. In order to be exempt, the employee must earn, by salary, the equivalent of at least double the California minimum wage.

Independent contractors are also exempt, as are certain unionized employees with collective bargaining agreements that require meal breaks on a different schedule. For example, employees who work for gas and electrical companies have collective bargaining agreements that supersede the work break rules of the Labor Code.

Employers cannot try to get around work breaks by asking employees to do work or be on standby during them. That means that asking an employee to answer phones or be "on-call" during her time off is effectively denying her the mandated break.

On the other hand, employers are not required to supervise employees on breaks to ensure that they relax. If an employee opts to do work during a break without being pressured by management, that is her own decision and the employer is not responsible.

There are penalties in California if an employer fails to provide an employee with a meal break or rest period to which he is entitled. If the employee is denied one or more rest breaks in a day, he gets one hour extra of pay at his regular rate.

Likewise, an employer who denies an employee one or more lunch breaks must pay him an extra hour at his regular hourly rate. Note that it is not an extra hour per denied rest break or lunch break, but a one hour total penalty for one or more denied rest breaks and another hour total penalty for one or more denied lunch breaks.

For example, what would happen if an employee worked eight hours without being allowed any break? He would be entitled to two rest breaks and one lunch break. But the penalty would be two extra hours pay, one for denied rest breaks and one for denied lunch breaks. And if meal breaks were denied an entire working year, roughly 250 days, the employee would be entitled to 250 extra hours of pay.

How does an employee collect the extra hours when an employer does not provide the rest period or lunch break requirements? If an employer does not pay the additional hours of pay for failing to offer breaks, an employee can file a wage claim with the Division of Labor Standards Enforcement.

Alternatively, an employee can go to court. She can file an action against her employer for the penalties.

California employers are required to provide lactation breaks to accommodate any female employees who wish to express breast milk for an infant child. This is both a federal and state requirement, although state protections are somewhat more comprehensive.

The Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require lactation breaks. The law now requires that employers provide female employees with reasonable break periods to express breast milk for a nursing child for up to one year after the child’s birth. However, this requirement only applies across-the-board to employers having at least 50 employees. Those with fewer employees do not have to comply if they can show that it would impose an undue hardship.

However, California's Labor Code section 1030 is more broadly applicable. It states: “Every employer . . . shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child.” It applies to all employers.

The language of the statute indicates that this is not optional, but an absolute requirement for employers. That doesn't necessarily mean that nursing employees are entitled to several extra breaks in a day. Whenever possible, the lactation break should coincide with the employee’s other break periods.

If it doesn't work out for a rest break to double as a lactation break, the employee does get extra work breaks. However, the law does not require an employer to pay the employee for the extra breaks.

An employer who can prove that lactation breaks would seriously disrupt his business need not offer them. But this is a very high burden and if the employer cannot meet it, the consequences of refusing to provide a lactation break are severe: a civil penalty for each and every violation in the amount of $100.

Under the FLSA, an employer must provide a place for employees to take their lactation breaks that is private and free from intrusion by coworkers or the general public. The area must also be shielded from the view of others. The law specifically states that it may not be a bathroom.

Under California’s Labor Code, employers are also prohibited from assigning a bathroom stall as a lactation area. Rather, every employer must make reasonable efforts to provide lactating employees with some private location, reasonably close to the employee's work area, to express breast milk. The area need not be permanently dedicated to lactation activities, but must be available for use when necessary.

Neither federal nor state law sets any hard and fast rules about the frequency or duration of lactation breaks. That's because the required frequency of expressing breast milk and the length of time necessary will vary between individuals.

The laws say that "reasonable " breaks must be allowed. According to the Department of Labor (DOL), the amount and frequency of the breaks must allow a nursing mother to express milk as frequently as she requires. The DOL estimates that a 15- or 20-minute break several times during an eight-hour shift is expected to be the norm but that everyone's circumstances may be different.

The DOL outlined in the Federal Register several factors a court can use if called upon to determine what constitutes a reasonable time for a break. They include:

• The time it takes the employee to get to and from the lactation space.
• Any wait time to use the space.
  
• The time it takes the employee to retrieve her pump and other supplies if no pump is provided in the lactation area. 
  
• The time it takes the employee to set up her own pump if no pump is provided in the lactation area.
• The efficiency of the pump.  
  
• The presence or absence of a sink and running water that the employee can use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk.
  
• The time it takes for the employee to store the milk in a refrigerator.

If an employer refuses to follow the law and provide employees with lactation breaks, an employee can bring a lawsuit against the employer. Alternatively, the employee can report the employer’s actions to the Labor Commissioner.

Getting results from reporting a violation to the Labor Commissioner can take time, however. Sometimes an employee can get action more quickly by filing a suit against the employer.