• The Wage Orders require a rest break duration of “net” 10 minutes. This has been interpreted by the DLSE to mean that the rest break begins when the employee reaches an area away from the workstation that is appropriate for rest. In other words, if the rest area is at a distance from the workstation, the time required for the rest break will need to be more than 10 minutes to allow time to reach the rest area, rest for 10 minutes, and then return to the workstation. Most of the Wage Orders require employers to provide suitable resting facilities that are available for employees during working hours in an area separate from the toilet rooms.

You must authorize and permit 10-minute rest breaks as follows:

Employers should generally provide rest breaks in the middle of each work period although deviations from this general scheduling may be permissible in certain circumstances. You must treat rest breaks as hours worked and must pay break time as time worked.

• There are meal and rest break exceptions in certain situations, see Meal and Rest Break Exceptions.

This topic contains the following information:

• Providing Rest Breaks
• Timing of Rest Breaks
• Rest Breaks for Piece Rate and Commissioned Employees
• Extended Rest Breaks for Breastfeeding Employees

Providing Rest Breaks

Employers may not require an employee “to work” during a rest break.2 That means you must:

• Provide employees with an uninterrupted break;
• Relieve employees of all duties; and
• Relinquish any control over how employees spend their break time.3

Although rest breaks are paid (unlike meal breaks), employers must still relinquish control over employees during the breaks. You cannot meet your rest period obligations if you exercise control over employees during their rest breaks.

For example, employers cannot require employees to remain on call because if employees must remain on call and at the ready during breaks, they are not free from their employer's control and are not being provided an uninterrupted break. Similarly, employees should be free to take a walk or make a personal phone call during a rest break.

In other words, employees must be able to use their 10-minute breaks as they want.

Employers are able to reasonably reschedule a rest break when the need arises - although such circumstances should be “the exception rather than the rule.” Moreover, if a rest break is interrupted, you can provide another rest break to replace the interrupted one or pay the premium pay for the missed rest break.

Review the specific Wage Order(s) that apply to your business for potential exceptions to this rule. For example, Wage Order 5 allows employers to require certain residential care employees to remain on the premises. In addition, an employer may be able to apply to the DLSE for an exemption if it is impossible to provide completely duty-free breaks without undue hardship and it can show that the exemption would not affect the welfare or comfort of employees; it is within the DLSE’s discretion to grant the exemption.

• If you think your organization may qualify for an exception or exemption from the rest break rules or if you have policies or practices that exercise control over employees during rest breaks, including by requiring employees to remain on premises during rest breaks, you should consult legal counsel.

Timing of Rest Breaks

As a general rule, the rest break should be in the middle of each four-hour work period. In the context of an eight-hour shift, that means one rest break should generally fall on either side of the meal break.4

Employers are given some latitude and may “deviate from that preferred course where practical considerations render it infeasible.”

Employers may depart from the general timing rule but only if:5

1. The departure will not unduly affect employee welfare; and
2. The departure is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.

A departure from the preferred schedule that is “merely advantageous” to the employer will not meet the above test. Instead, the employer must show that providing the rest break in the middle of each work period imposes a material burden and that a departure from the norm is necessary to alleviate that burden.

• Employers should be cautious about departing from the general rule to provide rest breaks in the middle of each work period and should consult with counsel if practical considerations unique to their industry appear to warrant a departure from the general rule.

Rest breaks should not be combined or added to the meal breaks. The best practice, as indicated by the courts, is to have rest breaks in the middle of each work period and, thus, not combine breaks even at the employee’s request. Unusual or exceptional circumstances may permit variation from the norm, such as where the business requires shifts in which the meal period occurs soon after the employee returns to work.

Rest breaks should not be used to allow an employee to begin work 10 minutes late or leave work 10 minutes early.

For each workday you fail to authorize and permit an employee to take one or more required rest breaks, you owe the employee premium pay of one additional hour of pay at their regular rate of rate. For more information on premiums, see Premium Pay for Meal and/or Rest Break.6

Rest Breaks for Piece Rate and Commissioned Employees

Employees with certain compensation plans must be paid separately for rest breaks. This rule applies to employees paid by commission, piece rate or any other compensation system that doesn't separately account for rest breaks.

The law requires employers to compensate piece rate employees for rest and recovery periods and all other periods of "nonproductive time" separately from any piece rate pay and at specified minimum rates. If your company uses a piece rate compensation system, you should review the program to ensure compliance with meal, rest and recovery period requirements, as well as other wage and hour requirements. For a specific discussion of how to pay piece rate employees for rest and recovery periods, see Piece Rate Pay.

Commission wage compensation plans also present some difficult problems for employers. A recent California court decision held that commissioned sales employees must be paid separately for mandatory rest breaks, even if the company’s commission plan ensured the employees always received more than the minimum wage for every hour worked.7 ”Separate Pay for Rest Breaks” in Commissions.

Extended Rest Breaks for Breastfeeding Employees

California and federal law require you to provide a reasonable amount of break time and a private place for employees to express breast milk.8 For more information on these laws, see Employee Expressing Breast Milk at Work.

1. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012)