Documenting California Rest Breaks

California employers must provide each not-exempt-from-overtime employee off-duty rest breaks based on the number of hours that employee works in a given day. An employer who fails to do so must pay the worker one additional hour of pay (i.e., premium pay) in that employee’s next paycheck. See Industrial Welfare Commission (IWC) Orders, Labor Code Section 226.7(c) and Required Meal Periods and Rest Breaks Revisited (April, 2018).

Unlike a meal period properly recorded by a worker clocking out and back in, rest breaks are paid and “on-the-clock.” Thus, even businesses scrupulously providing these minimum ten-minute off-duty periods can and do face employee claims of “rest deprivation” if management has not taken care to document the provision.

Best practices for workplace rest breaks — as well as meal periods — should thus include:

• Prominently post the applicable IWC Order(s) for worker reference to California break requirements;
• Distribute clearly written policy confirming management’s commitment to the law and specifying the break entitlements, including the extra hour of premium pay for any day with missed break(s);
• Similarly distribute written instructions for worker reporting of missed breaks and their resolution;
• Sufficiently train managers to apply company break provision policy, to ensure worker understanding of such standards, and to report any irregularities and their resolution;
• Require each worker to regularly complete a form – whether hard copy or electronic – attesting to his/her having been provided full opportunity to take all breaks within the time interval (e.g., week, pay period, or month) immediately preceding; and
• Include in that regular attestation form that any missed breaks were solely by the worker’s choice or, if not, that he/she has submitted adequate notice to payroll to confirm entitlement to the extra hour of premium pay as above.

See also:

• Keep On Providing – California Employers Must Fully Document Meal and Rest Breaks (May 13, 2021)
• Square Meal is the Deal – California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Workplace Rhythm & Cues – Our Employee Handbook & Forms for 2021 Including Updated COVID-19 Guidelines (January 21, 2021)

For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
June 11, 2021