228 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 7.8.9 Liability for noncompliant meal periods Failure to provide a required compliant meal period (i.e., uninterrupted, off-duty, continuous, 30 minutes) incurs liability for an extra hour of pay per day at the employee’s regular rate of pay (see § 7.10) and also can trigger section 558 of the Labor Code, which creates a civil penalty of $50 per employee per pay period for an initial violation, and $100 per employee per pay period for additional violations.274 7.9 Rest and Recovery Breaks Section 12 of most Wage Orders states: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.”275 A rest break must be paid: “Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”276 Section 12 applies only to nonexempt workers. Failure to provide a required rest break makes the employer liable for an extra hour of pay for each day in which a required rest break is not authorized and permitted. Labor Code section 226.7 forbids an employer to require an employee to work during a prescribed rest break.277 7.9.1 Amount and timing of rest breaks The Wage Orders entitle employees to 10 minutes of “net rest time” for every four hours worked or “major fraction thereof,” with the rest break to be available near the middle of the work period, insofar as is practicable.278 Under DLSE interpretations, employers must authorize and permit a first rest break if the daily work time is at least three and one-half hours and a second rest break if the work time has extended beyond six hours.279 In 2012, the California Supreme Court’s Brinker decision endorsed this interpretation, while also observing that employers must authorize and permit a third rest break for work in excess of 10 hours.280 The Wage Order’s reference to “net rest time” indicates that employees might be entitled to additional rest time if they need to spend minutes walking to and from a designated rest area.281 7.9.2 Meaning of “authorize and permit” An employer can be liable for failing to provide rest breaks if the employer has encouraged employees to skip rest breaks by failing to notify employees that breaks are available, where the employer is aware that employees are not taking breaks.282 There is no liability if employees freely choose not to take their authorized and permitted rest breaks. The Court of Appeal so acknowledged in a case in which a registered nurse sued a hospital for rest-break violations.283 She argued that her meal and rest breaks were cut short by work-related questions from co-workers. The trial court correctly granted summary judgment for the employer because, whenever the nurse reported a missed break, the hospital paid her an extra hour of wages. Although co-workers occasionally interrupted her breaks with questions, they left her alone whenever she reported she was on a break, and she was never told by a supervisor to end a break early. The fact that charge nurses sometimes looked at the clock while she was taking her breaks did not reasonably imply pressure by her employer to end her breaks early. 7.9.3 Record keeping Employers need not record rest breaks.284
RkJQdWJsaXNoZXIy OTkwMTQ4