No matter how dedicated an employee may be, it is impossible to labor for an entire workday without taking a break. Workers need to stretch, eat and – perhaps most urgently – go to the bathroom. California law recognizes this. It establishes rules and standards for work breaks, including restroom breaks and specifies which breaks are "on the clock" and which are not.
Federal and State Break Laws
Both the federal government and state governments have the right to set wage and hour laws for workers, including rules about work breaks. The federal law is the Fair Labor Standards Act. It sets the minimum work breaks an employer must give an employee, but states are free to require more protection for nonexempt employees.
Nonexempt workers are those workers who fit the definition set out in the Fair Labor Standards Act. Generally these are hourly workers who either earn less than $684 or who are directly supervised, rather than self-supervised. Executives and professionals are exempt and are not protected by break laws, or by the minimum wage and overtime laws.
California sets considerably higher protections for nonexempt workers than federal law requires. Therefore, the state law is the one an employee can rely on. It requires that California workers get regular 10-minute rest breaks, which they can use for visiting the bathroom. In addition, they are allowed "reasonable" bathroom breaks during the day.
California Rest Breaks
California law requires that employers give nonexempt workers regular rest breaks. The right to a 10-minute rest break applies to every employee who works a shift of three-and-a-half hours or more. The worker must be given one 10-minute break for every four hours worked, or any substantial part of four hours.
These rest breaks are "on-the-clock," and an employer is not permitted to deduct the time of the break from the hours worked. That is, California law requires that these rest breaks be counted as time worked for pay purposes. In contrast, California workers are also entitled to a 30-minute meal break if they work a shift of five hours or more, two 30-minute breaks if they work more than 10 hours in a day. These meal breaks are "off-the-clock" and need not be counted as part of their hours worked.
Nonexempt vs. Exempt Employees
Most employee wage and hour laws only protect employees who fit the definition of nonexempt workers under the laws. This applies to rest and meal breaks, as well as overtime pay mandates and minimum wage.
Which workers are nonexempt and which are exempt? The technical answer is that any worker who is not exempt from the law is nonexempt. Generally nonexempt workers are those who work by the hour and are subject to direct supervision. White-collar workers are exempt if they:
- Engage in intellectual, managerial or creative work at least half of their work time.
- Are expected to exercise discretion and independent judgment in performing their jobs.
- Earn a monthly salary equal to at least twice the California minimum wage for full-time work.
The rest break laws in California don't apply to independent contractors either, nor do they apply to unionized employees in certain industries. These unionized workers have collective bargaining agreements that set out different meal breaks.
Additional Reasonable Restroom Breaks
Obviously, an employee can use part of a rest break or a meal break to visit the restroom. But they are not required to do so. The purpose of rest breaks is to allow a worker to stop working, stretch and relax. The purpose of meal breaks is to eat meals. Neither type of California work break is specifically intended to provide bathroom breaks.
Rather, California law mandates that employers allow employees to use the bathroom as needed during the day in addition to their regular rest and meal breaks. The workers must be reasonable in taking bathroom breaks, both in the frequency and length of these breaks. Employers and employees may have different ideas as to what is reasonable when it comes to bathroom use, but, generally, several breaks of five to 10 minutes during a work day will be considered reasonable.
Sometimes workers have medical conditions that require them to use the toilet facilities more frequently or longer. This is often the case with pregnant employees, for example. In this case, employers must make all reasonable accommodations for these workers.
Rules for Bathroom Breaks
If an employee abuses the bathroom break privilege, the employer can take action to prevent the abuse. For example, an employee on a bathroom break must actually go to and stay in the restroom during the break. And additional bathroom breaks cannot be tacked onto a rest break to make it longer. Nor can a California employee go off the premises to use the restroom.
On the other hand, an employer cannot deny a worker a bathroom break because they "should have" gone to the bathroom during their rest break. In fact, the state law requires that break areas and restroom facilities are separate from each other, and employers cannot strong-arm employees to visit the restroom during their rest period. And it is illegal to require a worker to be "on-call" when they are taking a restroom, rest or meal break.
Employer Not Providing Breaks
What happens if California employers refuse to allow their employees to take their breaks as guaranteed under state law? The employee can file a wage claim against the employer for denying them breaks required under the California Labor Code or labor regulations, including meal, rest and bathroom breaks.
Under California law, an employee can recover one hour of pay at their regular rate for each break that was wrongfully denied to them. For example, if an employer refuses to allow a worker to take a bathroom break every day for a year – some 250 work days – the employer would owe the worker 250 times the worker's regular hourly wage. Assuming the hourly wage was $10, the worker would be entitled to $2,500. In addition, the employee can recover all of the rest/restroom break time that the employer subtracted from their paid work time.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.