As is well known, employers are required to provide rest breaks to all non-exempt employees whose total daily work time is at least 3.5 hours. These rest breaks must be at the rate of 10 “net” minutes for every four hours worked or “major fraction thereof.”
In a recent case decided by a California Appellate court, employees worked eight hour shifts and the employer provided them with one meal break and one 20 minute rest break that fell either before or after the meal break.
The court of appeal recently provided guidance with respect to two questions regarding the timing of rest breaks:
Can the two mandatory 10 minute rest breaks be combined into a single 20 minute break?
What is the proper timing of taking such breaks?
No Combining Breaks
Not unexpectedly, the Court agreed with prior decisions that the two mandatory rest breaks cannot be combined into one. The Court did state that there may be times that unusual or exceptional circumstances may permit variation in the timing of the breaks, but for general scheduling purposes, employers should not permit employees to combine their rest breaks into a single 20 minute break before or after a meal period.
Timing: One break on either side of the Meal Period
Relying on the Brinker Restaurant Corp. v. Superior Court decision of several years ago, the appellate court ruled that “rest breaks in an eight hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.”
The court stated that a departure from the generally required schedule may be allowed but only if the departure can meet the following two-prong test:
- The departure will not unduly affect employee welfare; and
- The departure is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.
A departure from the preferred schedule that is “merely advantageous” to the employer will not meet the above test. Instead, the employer must show that the preferred schedule imposes a material burden and that departure from the norm is necessary to alleviate that burden.
The court also stated that rest periods should fall in the middle of work periods and separated by the meal break “insofar as practicable” – which the court interpreted to mean “to the extent feasible.”
What Should I Do Now?
- Review your policies and practices to ensure that breaks are scheduled to comply with the requirements of one rest break falling in the middle of the work period. So that one break is in the middle of the work period before the meal period and one rest break is in the middle of the work period after the meal period.
- Ensure that no employee is combining their rest breaks;
- Ensure that employees are not combining their meal with either or both of their rest breaks;
- Educate supervisors on the rules regarding meal and rest breaks and ensure that someone is reviewing time cards for employee compliance.
(Rodriguez v. E.M.E., Inc.)
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