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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37848
Experience:  Retired (mostly)
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My daughter works as a swim instructor for a local city. Recently,

Customer Question

My daughter works as a swim instructor for a local city. Recently, they have had lower enrollment for classes and they are having the instructors work for 1/2 hour and then have an unpaid 1/2 break. Is this practice legal?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Tina replied 5 years ago.
Thank you for contacting

Does your daughter work immediately following the one hour of work and break? If so, for how long?

Customer: replied 5 years ago.
The swim instructors are scheduled as follows, for example:

Scheduled to arrive at 4:30, work 1/2 hour, unpaid break for 1/2 -1 hour, then work 1/2 hour paid, then unpaid break for 1/2 hour, then work for 1/2 hour. So the end result is that the kids have to be there for 3 hours and they only get paid for 1.5 hours with this on and off the clock practice.

Any input is greatly appriciated, I just hate to see these hard working teens being treated like this, at just above minimum wage, my daughter barely makes enough to cover her gas to get to and from work. She works in the AM and PM for lessons so she comes and goes from work twice daily and the 1/2 break is not long enough to leave.
Expert:  Tina replied 5 years ago.
I see.

As the authority I am locating relates to minimum break requirements and not excessive scheduled breaks, I will opt out in favor of other attorneys who may be able to answer your question.

Take care.

Expert:  socrateaser replied 5 years ago.
The California Labor Code wage and hour laws do not apply to government employees. This severely limits your daughter's employment rights.

However, under Federal law, the predominant considerations are the agreement of the parties and the degree to which the employee is free to engage in personal activities. [Owens v. Local No. 169, Ass'n of Western Pulp & Paper Workers (9th Cir. 1992) 971 F2d 347, 350–354]

Whether an employee is free to engage in personal activities depends on factors such as:
—whether there was an on-premises living requirement;
—whether there were excessive geographical restrictions on the employee's movements;
—whether the frequency of calls was unduly restrictive;
—whether a fixed time limit for response was unduly restrictive;
—whether the on-call employee could easily trade on-call responsibilities;
—whether use of a pager could ease the restrictions on the employee; and
—whether the employee actually engaged in personal activities during call-in time. [Owens v. Local No. 169, Ass'n of Western Pulp & Paper Workers, supra, 971 F2d at 350–354]

No single factor is dispositive. Rather, the court must balance the factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is “so restricted that he is effectively engaged to wait.” [Berry v. County of Sonoma (9th Cir. 1994) 30 F3d 1174, 1183].

Notes: Reading beyond the legaleze, the issue boils down to whether or not the schedule effectively prevents the employees from being free to engage in personal activities when on working -- because there is so little time available for the break. Usually, a 30 minute or more break is sufficient to permit the employee to engage in personal activities. However, you have multiple 30 minute breaks in this scenario, and it could be that the continued requirement to return to work may actually make the break time useless -- especially if the employees must remain in their swimsuits and the area of town in which they are located, doesn't really lend itself to running around in a swimsuit -- making a shower and a change of clothes necessary, which reduces the actual break to something considerably less than 30 minutes.

If your daughter wants to complain, she can contact the U.S. Department of Labor at: 1-800-4US-WAGES.

Hope this helps.

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