Question:

I am new at my job as a bookkeeper for a small company and some of the practices of my new employer are inconsistent with those of my prior employer. For example, my prior employer required me to keep records with respect to employee rest periods. My new employer tells me that is not necessary. I am sure that my prior employer received advice either from its attorney or from attending a seminar, and I am concerned that my new employer is confused as to the law. Are employers required to keep records demonstrating that employees took their rest periods?

Answer:

By way of background, most California employees are entitled to rest periods of not less than 10 consecutive minutes for each 4 hours or a portion thereof worked. These rest periods should occur as near as possible to the middle of the work period. Rest periods may not be combined or added to meal periods, even at the employee’s request. Employees must be paid during their rest period and may be required to remain on the premises during the break.

Unlike meal periods, which an employer is required to ensure are taken by all employees, “[A]s long as an employer authorizes and permits his employees to take their required rest period (and clearly communicates this authorization and permission), the employer will not be liable for the rest period penalty if the employee fails to take the full amount of authorized time for their rest periods, provided that the employee did not forego the full rest period as a result of employer coercion or encouragement.”

For each work day an employer fails to “authorize or permit” an employee to take a required rest period, the employee is owed one additional hour of pay at the employee’s regular rate of pay. Many rest period penalty claims arise out of situations where, although the employer has a policy authorizing rest periods, the employee either accurately or inaccurately perceives that the workload is such he or she should not take the break. When the employment relationship ends, these same employees often bring claims for rest period penalties.

In response to your question, your current employer is correct that State law does not require it to keep records of rest periods taken. However, it is a good idea and a best practice to somehow confirm that employees have been provided their rest periods. This can be done by either scheduling rest periods, tracking them on timesheets, or having employees sign acknowledgments confirming that they were provided all rest periods during the pay period.

A recent case highlights the wisdom of this practice. In Cicairos v. Summit Logistics, the court denied an employer’s summary judgment motion on a number of issues including whether or not rest periods were provided. The employer in that case argued that it produced sufficient evidence to show that it provided the employees with their rest periods by offering into evidence a collective bargaining agreement with a for rest period provision. The court held that because the company’s computer system did not include a code for rest periods, the employees might have been encouraged not to take their rest periods. Some of the employees felt pressured not to take their rest periods because they were not given credit for rest periods when their productivity was analyzed. Despite the collective bargaining agreement provision, the court felt there was a sufficient basis to deny summary judgment and send these employees’ claims to trial.

In conclusion, while your employer might be technically correct that it does not need to keep records of rest periods, your more conservative approach might better serve the company in the long run.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2005 Articles