Recent Developments in California Rest Period and Day-of-Rest Law

California generally requires employers to provide non-exempt employees with a paid rest period of ten (10) minutes for every four (4) hours worked, or major fraction thereof.[1] California also requires employers, under certain circumstances, to provide eligible employees with one day of rest every seven days.[2] In the last year, a trio of California state court decisions have addressed and clarified the provision and payment of rest periods and rest days under California law.

In Augustus v. ABM Security Services, Inc., the California Supreme Court held it is unlawful to require employees to remain on duty or on call during rest periods.[3] In Augustus, a putative class of security guards sued for failure to provide paid rest periods because their employer required guards to “remain vigilant” and carry their pagers and radio phones during rest breaks in order to respond to “calls when needs arose.” The California Supreme Court agreed such a policy was unlawful and explained that in order to comply with the law, an employer must relinquish all control over how employees spend their break time, and relieve their employees of all duties during rest breaks.[4] However, California continues to explicitly recognize two limited circumstances under which an employer can lawfully exert control over an employee during a rest break. First, employers in the public housekeeping industry can require certain employees to remain on premises and on duty during rest periods.[5] Second, employers for certain on-site occupations in the construction, drilling, logging and mining industries can require employees to take rest breaks at “employer designated areas, which may include or be limited to the employees immediate work area.”[6]

In Vaquero v. Stoneledge Furniture LLC, the California Court of Appeals held that non-exempt employees paid solely on commission must be separately paid for rest breaks.[7] In Vaquero, a class of non-exempt, commission-only sales associates argued they did not receive paid rest breaks because their employer paid them a recoverable advance or “draw” against future commissions when the associate failed to earn a minimum of $12.01 an hour in commissions during a given pay period.[8] The employer argued employees were paid for rest breaks because associates earned a guaranteed minimum of at least $12.01 for each hour worked, associates recorded their total time worked using the employer’s timekeeping system, the timekeeping system captured time spent on rest breaks because employees did not clock out and back in for rest breaks, and the employer treated “break time identically with other work time.”[9] The Court of Appeals concluded the policy failed to provide paid rest breaks on two grounds. First, employees would not be paid for rest periods if they earned commissions in excess of the guaranteed minimum. Rather, “[s]ales associates who were paid their commission received the same amount of compensation regardless of whether they took rest breaks.”[10] Second, if an employee received the guaranteed minimum because they did not earn sufficient commissions, the employer “took back” the previously paid minimum guarantee, including amounts ostensibly paid for rest breaks.[11] Accordingly, an employer utilizing a commission-based compensation plan must “separately account and pay for rest periods to comply with California law.”[12]

Finally, in Mendoza v. Nordstrom, Inc., the California Supreme Court resolved several ambiguities within California’s day of rest laws.[13] The California Labor Code states that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven” and “[n]o employer shall cause his employees to work more than six days in seven.”[14] In Mendoza, a putative class of non-exempt employees brought suit for failure to provide days of rest because employees were required to work more than six consecutive days in a row without receiving a day of rest.[15] The California Supreme Court’s holding was three-fold—first, an employer must generally provide its non-exempt employees one day of rest per workweek, not one day of rest every seven days on a rolling basis.[16] Second, an employer is not required to provide a day of rest to a non-exempt employee if that employee does not work more than six hours a day during each and every day of that seven-day workweek.[17] Conversely, the exception is destroyed if an employee works more than six hours on any day during any day of that workweek. Third, an employer must notify eligible employees of their entitlement to a day of rest and cannot “encourage its employees to forgo rest or conceal the entitlement to rest [but an employer] is not liable simply because an employee chooses to work a seventh day.”[18]

The monetary costs of non-compliance can be substantial under California’s rest period laws—an eligible employee who does not receive his or her paid rest periods can seek recovery for premium pay of up to two additional hours of pay each day, at the employee’s regular rate of pay, for up to the past four years’ of employment.[19] Injured employees can also seek civil penalties for the failure to provide paid rest breaks under California’s Private Attorneys General Act.[20]

Similarly, the monetary costs of non-compliance can be significant under California’s day of rest laws. An eligible employee who is not provided his or her day of rest can seek recovery of civil penalties, under California’s Private Attorneys General Act, equal to $50 for an initial violation, and $100 per subsequent violation, as well as any underpaid wages, for the past year of employment.[21]

Philip J. Smith is Senior Counsel with Constangy, Brooks, Smith & Prophete LLP, focusing on employment litigation involving claims for discrimination, harassment, retaliation, and wage and hour matters, as well as counseling on a variety of workplace issues including risk assessment and litigation avoidance, policy development and compliance. He is a member of the Employment Section of the Contra Costa County Bar Association.

[1] Cal. Code Regs. Title 8, §§ 11010-11160
[2] Cal. Lab. Code §§ 550-558.1
[3] Augustus v. ABM Security Services, Inc., 2 Cal.5th 257, 260 (2016)
[4] Augustus, 2 Cal.5th at 272-73
[5] Cal. Code Regs. Title 8, § 11050, subd. 12(C)
[6] Cal. Code Regs. Title 8, § 11160, subd. 11(A)
[7] Vaquero v. Stoneledge Furniture LLC, 9 Cal.App.5th 98, 102 (2017)
[8] Vaquero, 9 Cal.App.5th at 103
[9] Id.
[10] Vaquero, 9 Cal.App.5th at 115
[11] Vaquero, 9 Cal.App.5th at 115-16
[12] Vaquero, 9 Cal.App.5th at 117
[13] Mendoza v. Nordstrom, Inc., 216 Cal.Rptr.3d 889 (2017)
[14] Cal. Lab. Code §§ 550 and 551
[15] Mendoza, 216 Cal.Rptr.3d at 892
[16] Mendoza, 216 Cal.Rptr.3d at 898
[17] Mendoza, 216 Cal.Rptr.3d at 901; see also Cal. Lab. Code § 556
[18] Id.
[19] See Cal. Lab. Code § 226.7 (c); Cal. Civ. Pro. Code § 338 (a); and Cal. Bus. & Prof. Code § 17208
[20] See Cal. Lab. Code § 2699, et seq.
[21] See Cal. Lab. Code §§ 558 (a) and 2699, et seq.

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