Saturday, November 26, 2022

Rest Breaks: Ways to Prove Employees Receive Duty-Free Time

Recently, an employee complained to management that they were not receiving rest breaks. Because the breaks are paid, the employees do not clock out for them; how can we prove that employees are being provided their rest breaks?

California law requires employers to provide paid net 10-minute rest breaks for every four hours (or major fraction thereof) that a nonexempt employee works.

Unlike meal breaks, which employers may provide as unpaid breaks, keeping track of rest breaks can be challenging because the employee must be paid for the time. Fortunately, there are several tools available to employers to help prevent rest break violations.

‘Policing’ Rest Breaks

The California Supreme Court has consistently reinforced its holding in Brinker Restaurant Corp v. Superior Court ((2012) 53 Cal. 4th 1004) that employers are not required to “police” meal and rest breaks, but instead simply must provide the breaks.

Unfortunately, that holding has created confusion for employers who still lose claims brought by employees for rest and meal break violations.

The reason employers continue to lose is because the burden of proof that the employer provided breaks falls on the employer. So, without proof that the employer provided the employee the reasonable opportunity to take an uninterrupted 10-minute rest break where the employer relinquished all control over the employee and relieved that employee of all duty, the employer is at risk for rest break violations

In practice, this means that employers should still “police” rest breaks in such a way as to be able to demonstrate to the government that the employer complied with the law.

Scheduling/Timekeeping

The first step an employer should take is ensuring that there is some timekeeping record of the rest breaks taken. Although rest breaks are paid, employers still can require employees to note or affirm on their timekeeping records that they were provided the opportunity to take compliant rest breaks.

Recordkeeping can come in many forms, from a separate paper log to an electronic check box in a timekeeping system where the employee affirms their rest breaks were provided. So long as the record accurately reflects the provision of rest breaks, it will put the employer in a better position to demonstrate compliance.

The next step employers should take is scheduling the rest breaks. Employers are allowed to dictate when the employees must take their breaks and a break schedule that is published, and adhered to, helps demonstrate that the employer has made the rest breaks available to the employee.

Oftentimes employees like to choose when they take their breaks and resist such scheduling and timekeeping requirements. This is where a well-drafted and enforced rest break policy comes in handy.

Rest Break Policy

The California courts have found that an employer who demonstrates they enforce well-drafted break policies is compliant under California law.

An employer’s rest break policy should include instructions that the employee is entitled to an uninterrupted net 10-minute break, that the break is paid, and that the employee is free from control and all duties imposed by the employer.

Further, the policy should set forth any timekeeping or scheduling requirements and instruct the employee to inform their supervisor if denied a reasonable opportunity to take the break.

Lastly, the responsibility of enforcing a rest break policy does not fall on just one supervisor or manager, but the entire management team. As a result, all supervisors, managers and any other employees tasked with ensuring compliance with the rest break policy should be trained to both implement and enforce the policy with discipline if the employee fails to follow the policy.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Matthew Roberts
Matthew Roberts
Matthew J. Roberts joined the CalChamber in July 2019 as an employment law counsel/subject matter expert. He explains California and federal labor and employment laws to CalChamber members and customers, and was named in October 2021 to serve as manager of the Labor Law Helpline. He came to the CalChamber from the Shaw Law Group, P.C. of Sacramento, where he was a senior attorney, authored articles on emerging issues in employment law, and represented employers before state/federal employment law agencies. He received a B.A. in government from California State University, Sacramento and holds a J.D. from McGeorge School of Law, University of the Pacific, where he also served on the McGeorge Law Review as both a writer and primary managing editor. See full bio

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