Cal-Peculiarities: How California Employment Law is Different 2022 Edition

224 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com In 2012, the California Supreme Court’s Brinker decision endorsed this interpretation, while also observing that employers must authorize and permit a third rest break for work in excess of 10 hours . 256 T he wage order’s reference to “net rest time” indicates that employees might be entitled to additional rest time if they need to spend minutes walking to and from a designated rest area . 257 7.9.2 Meaning of “authorize and permit” An employer can be liable for failing to provide rest breaks if the employer has encouraged employees to skip rest breaks by failing to notify employees that breaks are available, where the employer is aware that employees are not taking breaks . 258 There is no liability if employees freely chose not to take their authorized and permitted rest breaks. The Court of Appeal so acknowledged in a case in which a registered nurse sued a hospital for rest-break violations . 259 S he argued that her meal and rest breaks were cut short by work-related questions from co-workers. The trial court correctly granted summary judgment for the employer because, whenever the nurse reported a missed break, the hospital paid her an extra hour of wages. Although co-workers occasionally interrupted her breaks with questions, they left her alone whenever she reported she was on a break, and she was never told by a supervisor to end a break early. The fact that charge nurses sometimes looked at the clock while she was taking her breaks did not reasonably imply pressure by her employer to end her breaks early. 7.9.3 Record keeping Employers need record rest breaks . 260 7.9.4 Rest areas required Employers must provide a rest area, separate from toilet rooms, where the employee may choose to take the rest break , 261 a nd arguably must also allow employees to leave the work premises during rest breaks (see § 7.9.8 below). 7.9.5 Calculation of rest break time The DLSE has opined that employees must be permitted to take their ten minutes of rest in an uninterrupted block (e.g., one ten-minute break, not two five-minute breaks ) 262 a nd that the “net rest time” language prohibits an employer from counting as rest time any time that the employee must take to move from one work position to another, or to a rest area . 263 7.9.6 Toilet breaks excluded The DLSE interprets the wage orders to forbid an employer to count any separate use of toilet facilities as a rest break. 7.9.7 Rest break time counted as hours worked The time spent on a rest break counts as working time . 264 7.9.8 “On duty” rest breaks not permitted Because rest breaks count as time worked, one would think that an employee who takes a break while remaining on premises, available for emergencies, would still be receiving a valid rest break, so long as work demands do not actually interrupt the break. Yet in 2016 the California Supreme Court upset long-standing employer expectations on this issue in Augustus v. ABM Securities Inc. A Los Angeles trial judge ruled, in 2012, that