Employment Law Blog

Filter:  IWC Wage Order No. 5

Missed-Break Premium Wages

Labor Code sections 226.7 and 512 in conjunction with Industrial Welfare Commission (“IWC”) Wage Order No. 5 (California Code of Regulations, tit. 8, sec. 11050) require Defendants to authorize and permit meal and rest breaks to their employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes. “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, 1035. In order for an employee to be relieved of all duty, the employee must be free to leave the workplace premises. Id. at 1036. An employer cannot “impede or discourage [employees] from [taking breaks].” Id. at 1040.

Section 226.7 and IWC Wage Order No. 5 also require employers to authorize and permit employees to take 10-minute rest breaks for each four hours of work, or major fraction thereof, and to pay employees their full wages during their rest breaks. A “major fraction of four hours” means greater than two hours. Brinker, supra, 53 Cal.4th at 1029. Unless the employee is relieved of all duty during the 30-minute meal break and 10-minute rest break, the employee is considered “on duty” and the meal or rest break is counted as time worked under the applicable wage orders.

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