Rest Break Hazards: A Common Occurrence in Employee Handbooks

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Below is how a typical Employee Handbook’s rest-break policy reads:

All non-exempt employees are entitled to rest break periods during their workday. You will be authorized and permitted one (1) 10-minute net rest break for every four (4) hours you work (or a major fraction thereof, which is defined as any amount of time over two [2] hours). A rest break need not be authorized for employees whose total daily work time is less than three and one half (3.5) hours.

If you are a nonexempt employee, you will be paid for all such break periods, and you will not clock out. You are required to remain on the work premises during your rest break(s). You are expected to return to work promptly at the end of any rest break.  (Italics added.)

Does this seem right to you? If so, you are not alone. However, the italicized language is dead wrong.

The California Labor Commissioner (i.e., the chief law enforcer of California labor laws) has explicitly said so. The Labor Commissioner has flat-out said that “‘during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.’” (See response to Q.5 here.)  Please see for yourself by clicking the link we’ve shared.

At MNK Law, we would re-write the second paragraph in the above excerpt as follows:

If you are a nonexempt employee, you will be paid for all such break periods, and you will not need to clock out or record your rest period unless your employing division says otherwise. You are required to remain on the work premises during your rest break(s). While you are expected to return to work promptly at the end of any rest break, you are free and clear to leave your work area and the Company’s premises. You are free and clear to use your rest periods in the manner you see fit.

See the difference? Our revisions not only ensure that the company’s rest-break policy is California compliant but also not minimizes the opportunity for plaintiff’s counsel to weaponize the company’s policy against itself.

And that leads us to ask: When was the last time you revised your Employee Handbook? We recommend that employers do so at least once every two years to keep up-to-date with legal changes.

For more information, please contact us at info@mnklawyers.com

This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.

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