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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39129
Experience:  Retired (mostly)
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This is a question about human resources. would you be able

Customer Question

Hi - this is a question about human resources. would you be able to answer that type of question?
JA: What state are you in? It matters because laws vary by location.
Customer: California
JA: Has anything been filed or reported?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: I am an employer and the question has to do with paid ten minute breaks ( not the meal period). In the state of California - employees are entitled to a ten minute paid break for every four hours of work. So the question is this - if an employee works for 8 hours. But works five hours first and takes a paid ten minute break and then a one hour lunch. and then returns for 3 more hours to complete an 8 hour day - are they entitled to another ten minutes of paid break ( sometimes referred to as a rest period)
Submitted: 9 months ago.
Category: California Employment Law
Expert:  socrateaser replied 9 months ago.

Hello,

I am a member of the State Bar of California, the Bar of the U.S. District Court for the Central District of California (San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, San Bernardino, Riverside Counties), and I have comprehensive knowledge of the California Labor Code. You asked:

If an employee works for 8 hours. But works five hours first and takes a paid ten minute break and then a one hour lunch. and then returns for 3 more hours to complete an 8 hour day - are they entitled to another ten minutes of paid break ( sometimes referred to as a rest period)?

A: In general, employers must provide rest periods of a specified minimum duration (generally 10 minutes of paid rest for every 4 hours worked). For shifts of less than 4 hours, employees are entitled to a 10-minute rest period after 3 1/2 hours. 8 Cal.Code Regs. §§ 11010-11150, ¶12 & § 11160, ¶11.

Based on your stated facts, if the employee receives the required 30-minute meal break after 5 hours of work (Cal. Labor Code § 512), plus an additional consecutive 30-minute meal break, leaving only 3 hours remaining to be worked during the day, then no second rest break is required, because the second shift is less than 3 1/2 hours in duration.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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Expert:  socrateaser replied 9 months ago.

Update: I have found a Cal. Division of Labor Standards Enforcement (DLSE) Opinion Letter that contradicts my previous opinion. While DLSE Opinion Letters are not "law" (as they are not subject to any public hearings and administrative notice and comment period -- nor, enactments of the legislature or the judgment of a court of appropriate jurisdiction), such letters are accorded considerable deference from the California and federal courts. The letter, dated February 2, 2002, provides s follows:

  • The language of the IWC Order clearly indicates that there is to be “a” rest period, not a succession of rest “periods”. The DLSE has consistently and historically interpreted“...[T]he word “net” as used in the Orders as obviously intended to restrict the employer from practices which would limit the rest period and, at the same time, is designed to insure that the employee receives the rest which the Commission has deemed necessary.” (See DLSE Opinion Letter 1995.05.28 and 1995.06.02, emphasis added.) In other words, there must be a net 10 minutes of rest provided in each “work period”.

That said, I do not agree with the letter's conclusion -- because, it leads to absurd results. Suppose that the employee works 5 hours, takes a one-hour break and then works a second period of 30 minutes. Under the DLSE interpretation, the employee would be entitled to a 10-minute break after working only 10 minutes of the second shift.

Makes no sense. Regardless, the issue has never been interpreted by a California District Court of Appeals. Until that occurs, the issue is "up in the air." So, you may want to err on the side of caution -- or, you could ask the DLSE for an opinion letter specific to your circumstances.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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Expert:  socrateaser replied 9 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.

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