Employment Law Blog

California Labor Code § 510 requires employers to pay overtime compensation for hours worked over eight hours per day and 40 hours per week. An employer may avoid paying overtime for hours worked over eight per day by adopting a valid Alternative Workweek Schedule (“AWS”). The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 16 (California Code of Regulations, title 8, § 11160, subd. 3(B), 3(C)). Among other things, the law requires an employer to hold a secret ballot election regarding the AWS amongst its employees and to file the results of the election with the State. Prior to the election, the employer must issue a written notification to the affected employees, explaining the election process and the effects of the AWS on the employees’ work schedule and compensation.

An employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not an actual law was being violated. Labor Code § 6310; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300; Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 87; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Thus, it is immaterial if the practice was actually unsafe or whether there was an OSHA standard that was actually being violated. The employee need only have complained in good faith about the working conditions or practices.

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.

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.

“Meal and rest periods have long been viewed as part of the remedial worker protection framework.” Murphy, infra. California law requires employers to authorize and permit rest breaks for every four hours of work or major fraction thereof. The California Supreme Court in Brinker, infra, explained that the “major fraction thereof” requirement means one break for a shift greater than 3.5 but less than 6 (“3.5>6”) hours long, two breaks for a shift greater than 6 but less than 8 (“6>8”) hours long, and three breaks for a shift greater than 10 but less than 12 (“10>12”) hours long.

California Labor Code section 226.7 prohibits employers from requiring its employees to work during any rest period mandated by the Industrial Welfare Commission (“IWC”) Wage Orders. “[I]n light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection.” Industrial Welfare Com. v. Superior Court, 27 Cal.3d 690, 702 (1980). “[T]he IWC’s wage orders are entitled to ‘extraordinary deference, both in upholding their validity and in enforcing their specific terms.’” Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1027 (2012) (quoting Martinez v. Combs, 49 Cal.4th 35, 61 (2010)). Rest break requirements “have long been viewed as part of the remedial worker protection framework.” Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1105 (2007).