Rest Breaks in the Workplace

Employers must provide non-exempt employees (employees eligible to receive overtime) rest breaks of at least 10 minutes for each four hours worked. An employer must also provide a meal break of at least one half-hour for every work period more than five hours. During the meal break the employee must be relieved of all duty and must be free to leave the premises. A second meal break is required if the employee’s work day is longer than 10 hours. Yet if an employee’s shift is six hours or less, the employee can choose to not take the meal break.

California Labor Code section 226.7 provides that if an employer fails to provide employees with these meal and rest breaks, the employee is owed “one hour of pay” for each missed break.

With respect to the penalty, rest breaks and meal breaks are different. With rest breaks, the employer is required to authorize and permit all employees to take the rest periods. An employer is not required to pay for the missed rest break if the employee, who was truly allowed and authorized to take the rest break, freely chooses to forgo it.

Meal breaks are different, however. According to the Labor Commissioner: “The employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and free to leave the worksite.” In sum, it is the employer’s duty to allow employees to take rest breaks, and to ensure that employees take meal breaks.

A recent California case, Murphy v. Kenneth Cole Productions, has expanded liability for employers in this respect. In recent years, unpaid breaks were considered a “penalty,” meaning that employees could only go back one year to recover missed breaks. However, the California Supreme Court held that missed breaks are actually a form of “wages,” meaning that employees can now go back three years.