Labor commissioner provides further guidance on rest breaks

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The Labor Commissioner’s Office recently updated its FAQs on the subject of rest breaks to provide further clarification and guidance on some nuances that employers may overlook. We already know the basics—that employers must authorize and permit non-exempt employees to take a rest break of at least net ten consecutive minutes for each four hours worked, or major fraction thereof, and that the break must, insofar as practicable, be taken in the middle of each work period. However, the FAQs illuminate a few other issues:

  • The "net" ten minutes duration of the break refers to the fact that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest.
  • Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.
  • An employer may not require an employee to remain on the work premises during a rest break (although as a practical matter, for a ten-minute break the employee would not be able to travel more than five minutes away from work before heading back).
  • An employer may not require an employee to keep in radio communication during a rest period (per the Augustus v. ABM Security Services, Inc. case that we reported on last year) as the employee is to be freed of all work duties and employer control during breaks.
  • An employee’s use of toilet facilities does not, in and of itself, count as a rest break. So, although a rest break does not need to be extended for an employee who chooses to use the toilet during the break, the DLSE prohibits an employer from requiring that employees count any separate use of toilet facilities as a full rest period.
  • The Labor Commissioner considers anything more than two hours to be a "major fraction" of four hours, however, a rest period is not required for employees whose total daily work time is less than three and one-half hours

Employers should maintain and enforce a written rest break policy consistent with the above requirements, and that prohibits management from discouraging or preventing employees from taking rest breaks.