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If you start work at 8:30 have lunch at 12 to 1:00 then work 1:00 to 4:30 are you entitled

Customer Question
to a rest break since...
If you start work at 8:30 have lunch at 12 to 1:00 then work 1:00 to 4:30 are you entitled to a rest break since you did not work 4 solid hours without a break?
Submitted: 5 years ago.Category: California Employment Law
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5/2/2012
California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,392
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to answer your question.

In the state of California, an employee is entitled to a rest break of at least ten minutes for each four hour work period or major fraction thereof. The Division of Labor Standards Enforcement (DLSE) regards XXXXX XXXXX period of more than two hours to be a "major fraction" of four, and thus, an employee actually earns his or her right to a rest period upon completion of his or her second hour of work.

This means that an employee who only works 3.5 hours after lunch would be entitled to a rest break during the afternoon portion of his or her shfit because that portion of the shift constitutes a "major fraction" of four, even though the afternon portion of the shift is less than four hours.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
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Customer reply replied 5 years ago

does this allow a rest break for the first 3.5 hours worked in the morning; therefore allowing 2 rest period for a 7 hour work day?

California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
"Does this allow a rest break for the first 3.5 hours worked in the morning; therefore allowing 2 rest period for a 7 hour work day?"

Yes, it does. Essentially, if an employee works 6 hours or more, they are entitled to two rest periods.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
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Customer reply replied 5 years ago
if an employee works only 3 hours and 45mins a day do they get a rest break?
California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
Yes, they would because anything more than 2 hours is a "major fraction" of four, and that is all that's required to trigger a rest break.

If you require any further clarification, please don't hesitate to ask.
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Customer reply replied 5 years ago
how much encouragement do you have to give your employee to be considered within the law? do we have to set a time? I know we dont have to document the break and i have heard it is up to the employee to take it, yet the labor commission is saying we did not encourage the break. Also where is there a more employer friendly state we can move to?
California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
The Labor Code simply states that an employer must "authorize and permit" employees to take rest breaks. There is no specific definition for what constitutes "authorization and permission." Accordingly, so long as an employer does not affirmatively reject an employee's request for a rest break, they would typically be in compliance with this law as it is written.

Also, please allow me to clarify my previous response. An employee who works 3.5 hours would be entitled to a rest break because that shift is a "major fraction" of 4. However, the Labor Code specifies that an employee must work a total shift of no less than 3.5 hours in order to be entitled to a rest break. This means that an employee would not be entitled to a rest break if they only worked a 3 hour shift or a two hour shift. I just want to clarify that point.
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Customer reply replied 5 years ago

can the deputy labor commissioner come into our office unannounced and request payroll forms, time sheets and give my employees a questionaire and interview during our regular work hours? this according to her was brought on by an anonymous complaint. also is a shift a daily shift regardless of a large break in between morning and afternoon?

You forgot to address which state is more employer friendly?

California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
Hello again and thank you for following up. Sorry for not addressing the other part of your question.

Here is an article that discusses more "employer friendly" states: http://www.freeenterprise.com/state-employer-friendly-policies-vital-to-job-creation

In general, the Labor Commissioner has broad authority to investigate claims of unpaid wages, rest breaks, etc. Since an employer is required to keep all payroll information on hand anyway, it likely would not constitute a violation for the Labor Commissioner to show up and demand such documents, typically speaking.

Would you be so kind as to accept my answer for the information provided?

Kindest regards.
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