On-Call Rest Periods Not Permitted in California

California’s Wage Orders provide as follows:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

The Wage Orders require employers to pay the employee for one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided and for an additional hour of pay at the employee’s regular rate of compensation for each workday that a meal period is not provided.  See also California Labor Code Section 226.7.

In a recent case addressing an employer’s obligation to relieve its employees of all duties during a rest period, the California Supreme Court held that “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”  Augustus v. ABM Sec. Servs., Inc. (Mar. 15, 2017) 2 Cal.5th 257, 260.  The Court clarified that an employers’ obligation to relieve an employee of all duties applied not only to meal periods, but also to rest periods.  Id. at 265.  Continue reading “On-Call Rest Periods Not Permitted in California”


Rest Periods Must be Separately Compensated for Commissioned Employees

In Vaquero v. Stoneledge Furniture LLC (Feb. 28, 2017, B269657) __ Cal.App.4th __ (“Slip Op.”), the Court of Appeal explained that an employer’s obligation to separately compensate employees for rest periods extends to employees who are paid on a commission basis. This decision is in accord with other Court of Appeal decisions that require employers to separately compensate rest periods for employees who are paid on a piece-rate basis. (See Bluford v. Safeway Stores, Inc. (2013) 216 Cal.App.4th 864; Gonzalez v. Downtown L.A. Motors, LP (2013) 215 Cal.App.4th 36; see also Labor Code § 226.2.)

In Vaquero, the court analyzed IWC Wage Order No. 7, which applies to the Mercantile Industry, including retail and wholesale salespeople. Section 12 of Wage Order No. 7 says that employees must receive 10 minutes of rest time for every four hours worked, or major fraction thereof, which must be counted as hours worked for which there shall be no deduction from wages.

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Rest Period Pay and Overtime Premiums for Piece-Rate Workers

A complicated and developing area of California wage and hour law involves how to calculate wages and premium pay for piece-rate workers. In this post, we will explain the calculations for rest period wages and overtime premiums for piece-rate workers.

Many California workers are compensated on what is known as a “piece-rate” basis. Piece-rate means that a worker’s pay is based on a specific amount paid for completing a particular task or making a particular piece of goods. This could include truck drivers who are paid based on the number or type of loads delivered, factory workers who are paid based on the number of widgets completed, or construction workers, such as plumbers or electricians, who are paid based on the number of installations they do.

Even though piece-rate workers are not paid by the hour, they are still entitled to the protections provided by the California Labor Code. These protections include overtime premium pay for more than eight hours of work in a day or 40 hours in a week, meal periods before the end of fifth hour of work, separate compensation for required rest periods, and wage statements showing, among other things, the number of pieces completed, the applicable piece rates, and overtime and rest period pay.

But if someone is paid by the piece, how is their hourly wage calculated for the purpose of determining the amount of wages for paid rest periods and overtime premiums?

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Can California Employers Combine Rest Breaks into One Break?

One common source of PAGA penalties occurs when employers fail to authorize and permit the rest breaks that are required under California law.   When this happens, workers can recover one hour of pay at their regular hourly rate for each day they are deprived of one or more rest breaks.  They can also seek penalties […]


The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?

Two questions have bedevilled practitioners representing workers in California ever since the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court in 2012:  In a shift that qualifies for two rest breaks and one meal break, are employers required to provide one rest break before the meal break Gear-and-Gavel_dark-blueand the other one after?  And, on a related note, can an employer combine multiple rest breaks into one long rest break?

In Rodriguez v. E.M.E., Inc. (April 22, 2016), the employees worked eight hour shifts.  The defendant provided them with one meal break and one 20 minute rest break that fell either before or after the meal break.  The Second District Court of Appeal used this scenario to provide some critical guidance with respect to when and how employers must schedule rest breaks. Continue reading “The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?”


The Road Ahead for California Truckers:  Rest Breaks, Piece-Rate Work, and Federal Preemption

Several cases over the past few years have made it much easier for truck drivers in California to collect unpaid wages for missed meal and rest breaks.  These decisions have also clarified that truck drivers in California who are paid by the mile or by the load must be paid separately for time that they are not actually Gear-and-Gavel_dark-bluedriving.  This means that companies that pay their drivers by the piece must also pay them an hourly rate for time spent doing things like vehicle inspections and stand-by time.

For example, in Bluford v. Safeway Stores, Inc., a group of truck drivers sued Safeway for unpaid rest breaks.  Section 226.7 of the California Labor Code and Industrial Welfare Commission Wage Order 9 require employers to permit employees to take 10 minute rest breaks for every four hours (or major portion thereof) worked.  The first rest break kicks in after three and a half hours of work.  The second kicks in after six hours, and the third after 10 hours.  In other words, an employee who works a shift that is more than 10 hours long is owed three rest breaks.  Although employees are free from job duties during these breaks, the employer is required to pay for them and cannot deduct the rest breaks from employees’ wages.

The Bluford drivers claimed that Safeway had violated these requirements because it paid drivers based upon miles driven and tasks performed, but did not pay them for their rest breaks.  Safeway responded that it did not deduct any pay from the drivers’ paychecks, and thus did not violate the law.

The California Court of Appeal agreed with the drivers.  The court held that the drivers’ claim that they were not paid separately for rest breaks was enough to state a claim under Wage Order 9.   In other words, where drivers are paid by the mile or by the task, the employer must pay them separately for their rest breaks.  (On a separate but related note, if a driver is unable to take a rest break, the employer must compensate him or her with an additional hour of pay.) Continue reading “The Road Ahead for California Truckers:  Rest Breaks, Piece-Rate Work, and Federal Preemption”


Ninth Circuit Clarifies California Labor Law Protections for Truck Drivers in Dilts v. Penske Logistics

California labor laws almost always offer stronger protections than their federal counterparts, which set the minimum baseline for all states. However, for some categories of employees, the California Labor Code protections can be preempted by federal laws- meaning the federal law supersedes the California law. Federal Gear-and-Gavel_blackpreemption of California laws almost always translates into fewer protections for employees.

Two federal regulatory schemes in particular contain preemption clauses: the Federal Aviation Administration Authorization Act of 1994 (FAAAA), dealing with motor carriers (the trucking industry), and the Airline Deregulation Act of 1978 (ADA), dealing with the air carriers. Both laws bar the application of California laws “relating to the rates, routes, or services” of any air or motor carrier.

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The Law Regarding “On-Duty” Meal Periods in California

In California, on-duty meal periods, in which employees are not relieved of all duties, are only legal under certain narrow circumstances.

California employers are generally required to provide an unpaid, off-duty meal period of at least 30 uninterrupted minutes to its non-exempt employees for Gear-and-Gavel_goldevery five hours of work.  During these meal periods, employees must be relieved of all duties and employers must relinquish control over their activities.  Employers may not impede or discourage employees from taking their breaks.  See Brinker v. Superior Court (2012) 53 Cal.4th 1004; California Labor Code §226.7; 8 Cal. Code Regs. §11040.   If an employee is not afforded a 30-minute uninterrupted meal break for every five hours worked, the employer must compensate the employee for one additional hour of pay for each workday that the meal break is missed.  California Labor Code §226.7.

Sometimes, in an attempt to circumvent this law, employers ask employees to sign forms agreeing to take “on-duty” meal periods.  However, on-duty meal periods are permissible only under very limited circumstances.  On-duty meal periods are only legal if: Continue reading “The Law Regarding “On-Duty” Meal Periods in California”


On-Duty Meal and Rest Breaks: Workers May Proceed In Class Action Even If Some Got Breaks

The recently published decision in Faulkinbury v. Boyd & Associates, G041702 (Cal.App.4th May 10, 2013) (Faulkinbury II) clarified several important issues in wage and hour class actions.  First, the court held that a trial court must certify a class where an employer requires all employees to sign meal-break waivers-evenGear-and-Gavel_dark-blue when some of the employees are able to take off-duty meal breaks.  Second, the court held that the lack of a uniform rest break policy may create a common issue that is sufficient for class certification.  Third, the court held that an overtime policy that fails to include bonuses and other allowances in calculating the overtime rate of pay presents common questions suitable for class treatment.
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