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Those are the Breaks

The topic of this article is fairly straightforward: What breaks are employees entitled to take throughout the workday? The answer - a favorite among attorneys - is "It depends." It depends on whether we are talking about meal breaks or rest breaks. An employee working a regular 8-hour day is entitled to both meal and rest breaks. However, there are differences between the two.

Rest breaks

  • Employees must be given rest breaks of at least 10 consecutive minutes for every 4 hours worked.
  • To the extent possible, rest breaks should be taken in the middle of each work period.
  • Rest breaks are paid - employers cannot require employees to clock-out during rest breaks.
  • Employees may be required to remain on the work premises during the rest break. However, employers may NOT require employees to do any work during a rest break.
  • Employees are free to skip a rest break, provided the employer isn't encouraging or forcing the employee to skip it.

Meal breaks

  • If an employee works more than 5 hours in a day, they are entitled to a meal break of at least 30 minutes. However, employees can agree to waive this meal period, provided the employee does not work more than 6 hours in the workday.
  • Employees can also agree with their employer to have an "on-duty" meal break which counts as "timed worked" and must be paid.
  • If an employee works more than 10 hours in a day, they are entitled to a second meal break of at least 30 minutes. An employee can agree to waive this second meal period, provided they do not work more than 12 hours and they did not waive their first meal break.
  • Employers have an obligation to make sure that employees are relieved of all duty and free to take meal breaks away from the work premises.

Keep in mind that there are some exceptions to these rules for certain industries, such as the health care, group home, and motion picture industries. Also, these rules only apply to non-exempt workers, i.e. workers who are not exempt from overtime.

Failure to abide by these rules can result in significant penalties and fines from the Labor Commissioner. As such, it is worthwhile to ensure that your company's policies with regards to meal and rest breaks are compliant with the law.

This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler & Abbott LLP, (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com).

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