unpaid wages

Employer Cannot Combine Rest Periods

California law requires employees to receive a paid 10-minute rest period for every 4 hours worked, or major fraction thereof.  California employees are also entitled to an unpaid 30-minute meal break whenever the employee works more than 5 hours in a day.  The rest periods are supposed to occur in the middle of each 4-hour block, and the lunch break must typically occur before the 5th hour. So, can an employer combine rest periods into one long 20-minute rest period? According to Juan Rodriguez v. E.M.E., Inc., probably not.

Employer Cannot Combine Rest Periods

In Rodriguez, employee worked either a first or second shift. The first shift went from 7:30 a.m. to 4:00 p.m. and the second shift went from 3:30 p.m. to 11:30 p.m. During the first shift, employees received a 20-minute rest break at 9:30 or 9:40 a.m., and a 30-minute meal break at 12:30 p.m. During the second shift, employees received a 30-minute meal break at 5:30 p.m. and a 20-minute rest break at 8:00 p.m.

The Rodriguez case hinged on the extent to which Wage Order 1-2001 permits an employer to combine rest periods and whether an employer had to provide them before or after the meal break. The Rodriguez court relied on Brinker, which held “Employers are . . . subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” The Brinker court left open under what circumstances an employer could deviate from “the preferred course.”

E.M.E. argued that its shift schedules provided the required 20 minutes of total rest periods, and that “no statute or provision of the wage order barred a single combined rest period.” E.M.E. argued that practical considerations rendered “the preferred course” infeasible. The company had provided the combined rest periods for over 30 years, and resulted from requests by the employees. The company also argued the combined rest periods increased productivity because it eliminated having to prepare equipment for starting and stopping work (e.g., cleaning paint gun before break and then refilling the paint container for spraying before starting again). Several employees submitted declarations stating they “preferred the combined break in the morning because it allowed them to buy a meal from the food truck and provided for a better rest.”

The court was not swayed:

Under the circumstances established here, section 12(A) of Wage Order 1-2001 obliged E.M.E. to provide a 10-minute rest break in the middle of the work periods occurring before and after the 30-minute meal break “insofar as practicable.”

The court believed a jury must decide “whether the rest break schedule stated in the wage order was not practicable.”

The lesson, even if employees are asking to combine rest periods, employers risk litigation when the employer deviates from the “preferred course” established by the wage orders.

under the applicable wage order provision, rest breaks in an eight-hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.

Don’t Combine Rest Periods

Unless the employer can prove the “preferred course” is infeasible, employers should schedule a 10-minute rest break around the 2-hour mark, followed by an unpaid 30-minute lunch break around the 4-hour mark, and a final rest break around the 6-hour mark.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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