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.
The California Division of Labor Standards Enforcement (DLSE) has issued a revised notice template and additional Frequently Asked Questions (FAQs) to assist employers in complying with the state’s Wage Theft Prevention Act employee notice requirements. The revised template and the new FAQs, which are effective April 12, 2012, can be downloaded here.
The Wage Theft Prevention Act of 2011 requires California private-sector employers to provide each newly hired, non-exempt employee with a written notice that contains specified information. See our previous posts of October 20, 2011 and February 7, 2012 for a detailed discussion of the notice requirements.
Most of the changes reflected on the new template appear to be fairly minor, but there are at least three substantive changes/clarifications that deserve mention:
First, the new template clarifies that when a staffing agency hires an employee, it is the staffing agency, and not the staffing agency’s client for whom the employee is assigned to perform work, that is responsible for issuing the notice to the employee.
Second, whereas the previous template inquired whether the “employment agreement” is written or oral, the new template simply inquires whether there is a written agreement regarding “the rate(s) of pay.” Apparently some employers were confused by the previous language, believing (wrongly) that acknowledging the existence of any agreement, oral or written, might make it difficult to defend the at-will status of the employee.
Third, the new template makes it clear that an employee’s signature in the “Acknowledgment of Receipt” portion of the notice is optional, and that if the employee does sign, the signature merely constitutes acknowledgment of receipt.
Fortunately, the new FAQ No. 27 provides that if an employer has already issued a notice to an employee using the old form, and there have been no substantive changes to the information contained on the old form, the employer need not issue a new notice until there is a substantive change to the previously-provided information.
California employers should make sure that the individuals in their organizations who exercise responsibility for preparing and issuing notices to new hires are aware of the revised template and the new FAQs. In addition, employers who have chosen to create their own notice forms (as opposed to using the template provided by the DLSE) should review their forms to make sure they are consistent with the DLSE’s new guidance.
Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA