According to the Industrial Welfare Commission Wage Orders in California, employers are required to authorize or permit employees to take a rest period in the middle of each work period in the amount of not less than 10 minutes for every 4 hours of work or a major fraction thereof. Major fraction would be 2 straight work hours. However, the employer is not mandated to give said rest break if the employee only works 3 ½ hours or less during a work day.
The law provides that the rest break, although not strictly given within the middle of work period, should at least be given as close to the middle of the 4-hour work period as practicable. If your employer fails to provide you your rest period as mandated by law, then you can claim labor law violation against your employer and be paid for each rest period not given to you in the equivalent amount of one hour’s worth of pay for every rest period that you were not permitted to take. If your employer is hard headed and refuses to pay you said compensation, then you have a right to file a wage claim with the Division of Labor Standards Enforcement or the DLSE.
On the other hand, if you chose to work during your rest periods, you cannot demand additional compensation for them, unless your employer requested for you to work through your rest period and you agreed to provide said additional work time. Also, if you chose to work during your rest periods, you can come to work late or go home earlier than permitted by your employer because these rest periods are not convertible to ordinary work hours.
However, just because you have a 10-minute break doesn’t mean that you have the right to leave your employer’s premises immediately. Although you are permitted your rest breaks, said rest breaks, if required by your employer, should be done inside work premises. The reason for this is that your rest periods are paid breaks and hence, your employer may require you to stay within company premises in order to prevent over breaks. In the same vein, your employer should provide you with suitable place for rest aside from the restrooms. Hence, if you have no space to rest, your employer should allow you to go out of the office, although within the vicinity, in order to take your break while at the same time avoids the occurrence of over break.
In some cases though, employers count the toilet or rest room breaks as part of the 10-minute rest period during the morning and the 10-minute rest period in between work time in the afternoon. This is violated of your right to your 10 minute breaks. The law contemplates that your rest breaks are for you to rest and not just to relieve yourself as evidenced by the fact that employers are required to provide his employees suitable rest areas aside from or apart from restrooms. If your employer counts your restroom breaks as part of your authorized breaks, then he is liable to pay you at least an hour’s worth of pay for each violation.
The foregoing considered, if your employer prevents you from claiming your 10 minute breaks during work days then you can file a wage claim with the DLSE. Otherwise, you can file a case in court to claim your damages against your unjust employer. However, you should take note of the fact that there is a statute of limitations for this cause of action.
According to the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of one hour’s pay per every unauthorized rest break under Labor Code section 226.7 is a wage subject to a 3-year statute of limitations. Hence, you should file your claim, whether with the DLSE or the regular courts within 3 years from your employer’s violation. Otherwise, you will forever be barred from claiming the unpaid wage.
As you can imagine, knowing that you have the right to file a claim against your employer and actually pursuing your right are two different things altogether. This is why it is not advisable to seek redress of your grievance on your own, especially when it comes to employment and labor law violations. Your employer has the resources to hire defense lawyers, aside from insurance carriers, who will definitely do everything to protect the employer’s interest. Hence, if you are serious in claiming the compensation due you, you should always seek legal help from top employment and labor law attorneys who can readily advice you on what to do in these types of instances. There are contingency based representations which would guarantee that you will not have to spend anything to pursue your rights and your lawyer will just get a percentage of your award after he wins your case for you. Therefore, hiring top legal representation will be your best bet in making sure that your employer pays a high price for violating your employment and labor law rights.