We’re a small company and we’ve been fairly lenient with rest breaks. We assumed that employees would take a 10-minute rest break in the morning and again in the afternoon, but we haven’t policed exactly how long people take their breaks. We’ve also just let smokers step outside for cigarette breaks without tracking how often or how long they’re out. We haven’t felt that anyone was taking advantage of this system or abusing the privilege. But the nonsmokers have been complaining lately that the smokers are getting extra breaks. I guess we now need rest and smoking break policies. What are the rules for rest breaks? How do we police compliance? —Anonymous
California employers must “authorize and permit” all nonexempt employees to take rest periods that: 1) occur in the middle of each work period (where practicable); and 2) equal 10 consecutive minutes net rest time per four hours worked.
An employer that affords employees two 10-minute net rest periods per eight-hour workday may forbid employees from taking additional breaks. Conversely, allowing employees to take unlimited smoke breaks, each less than 10 minutes, will not satisfy the requirement to provide a net 10-minute rest break all at once. Employers should thus require employees to:
- Take one 10-minute rest break in the morning and another 10-minute break in the afternoon.
- Take breaks away from their workstations.
- Not take additional breaks without a supervisor’s consent.
The break policy should be enforced in a uniform and nondiscriminatory manner.
A Breakdown of the Break Rules
Each Wage Order requires that the rest period must be a net 10 consecutive minutes. This means, for example, that an employee who takes a five-minute break to go to the restroom and a second five-minute break to smoke a cigarette has not been afforded the net 10-minute rest period and is therefore entitled to an additional full 10-minute rest period. (There are exceptions for construction, mining, and other occupations covered by Wage Order 16 and certain workers in extended care homes under Wage Order 5.)
The Wage Orders also require a suitable “resting facility” in an area separate from the toilet rooms. According to the California Division of Labor Standards Enforcement (DLSE), the required rest period begins only when the employee reaches “an area away from the workstation that is appropriate for rest.” This means that employers must provide a suitable facility for breaks and not allow employees to take breaks at their workstations. In addition, the California Labor Code prohibits smoking in “enclosed places of employment” and requires that smoking occur away from these spaces, normally at a designated smoking area outside the building.
Employers may meet these legal obligations by permitting smokers to take only one net 10-minute smoke break in the morning that begins when they reach the designated smoking area and a second smoke break in the afternoon.
Policing Rest Breaks
The reader also asks how a rest break policy should be enforced. Rest periods are paid and counted toward hours worked. Accordingly, employers normally do not require employees to clock out or in from rest breaks. Employers may, if they wish, require employees to record their break times to ensure that breaks are indeed taken.
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However, employers are only obligated to authorize and permit—not require—employees to take rest breaks. Although employers should monitor breaks to prevent employee abuse, the DLSE does not require employers to ensure that employees take rest breaks away from their workstations as long as employees voluntarily choose not to take them. (In contrast, employers must ensure that employees in fact take meal breaks away from their workstations.
Sample Policies
The following are suggested policies for rest periods and smoking:
Rest Periods. Rest periods are scheduled by each employee’s supervisor to ensure that the employee’s position and duties will be covered during rest periods. Where possible, rest periods will be in the middle of each work period. All nonexempt employees are afforded two net 10-minute rest periods during the eight-hour workday. These breaks may not be combined or added to an employee’s meal period. Additional rest breaks are not allowed without a supervisor’s consent. For pay purposes, rest periods are considered time worked.
Smoking Policy. Smoking is prohibited inside our offices. You may smoke only outside in designated smoking areas during scheduled rest and meal periods.
Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West, LLP.