California Agency Issues New Guidance Stating Employers May Not Require Employees to Remain On-Site During Rest Breaks

California’s Division of Labor Standards Enforcement (DLSE) recently updated its guidance on paid 10-minute rest breaks.  In its new guidance the DLSE maintains, for the first time, that an employer may not require its employees to remain on the employer’s premises during rest breaks.

In November 2017 the DLSE posted on its website new Frequently Asked Questions (FAQs) addressing requirements for rest breaks and lactation accommodation.  That new guidance includes the following:

5. Q. Can my employer require that I stay on the work premises during my rest period?

A: No, your employer cannot impose any restraints not inherent in the rest period requirement itself.  In Augustus v. ABM Security Services, Inc., (2016) 5 [sic] Cal.5th 257, 269, the California Supreme Court held that the rest period requirement “obligates employers to permit—and authorizes employees to take—off-duty rest periods.  That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.” (citation omitted)  As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.

The new DLSE FAQs in their entirety can be found here.  In the Augustus v. ABM Security Services case cited by the DLSE, the California Supreme Court held that employees cannot be required to remain on-call during rest breaks, but did not expressly say employers must allow their employees to leave the employer’s premises during rest breaks.  For more information on the Augustus case see our December 27, 2016 blog post.

Prior to the DLSE’s new FAQs, it was widely understood that employers may require their employees to remain on-site during rest breaks.  While the DLSE has no authority to make law, it is empowered to enforce California wage orders and labor statutes, and courts often find the DLSE’s opinions on enforcement issues persuasive.  For this reason California employers should take the DLSE’s new guidance seriously.

As the DLSE pointed out in its new FAQs, the realities of time and distance are likely to discourage many employees from leaving their employer’s premises during 10-minute rest breaks, even when allowed to do so.  However, an employer’s policy that purports to prohibit employees from leaving the employer’s premises during rest breaks could, under the DLSE’s new interpretation, potentially support a conclusion that the employer failed to relieve its employees of all duty during rest breaks, and subject the employer to liability.  California employers should therefore review their policies and practices to ensure they are not requiring employees to remain on the employer’s premises during rest breaks.

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