Rest period provisions: the authorize-and-permit standard under every wage order

STATE OF CALIFORNIA
GRAY DAVIS, Governor

DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
320 W. 4th Street, Suite 430
Los Angeles, CA 90013
(213) 897-1511(213)897-2877 fax

ANNE STEVASON, Acting Chief Counsel

                                        January 28, 2002

        Robyn A. Babcock
        Sidley Austin Brown & Wood
        555 West Fifth Street
        Los Angeles, CA 90013

                   Re : Rest Period Provisions

        Dear Ms. Babcock:

             This is in response to your letter of October 9, 2001 to
        Labor Commissioner Arthur S. Lujan.   In your letter, you refer to
        a letter issued by the Labor Commissioner on September 17, 2001
        on the subject of the rest period provisions under Industrial
        Welfare Commission ("IWC") Wage Order 16.   In your letter, you
        correctly note that every wage order, not just Order 16, contains
        the following language in regards to the rest period: "Every
        employer shall authorize and permit all employees to take rest
        periods, which insofar as practicable shall be in the middle of
        each work period." Of course, there are additional provisions
        regarding rest periods under Order 16 that are unique to that
        Order, and that is why much of the discussion about the rest
        period provisions under Order 16 is not applicable to employers
        covered by other orders. But, focusing on the language that is
        common to all wage orders, you ask whether we would agree that
        under all of the orders, and not just Order 16, an employer must
        only "authorize and permit" employees to take rest periods.   In
        this regard rest periods differ from meal periods, during which
        an employer has an affirmative obligation to ensure that workers
        are actually relieved of all duty, not performing any work, and
        (with the exception of health care workers under Orders 4 and 5)
        free to leave the employer's premises.
             This distinction between meal periods and rest periods is
        present in all of the wage orders, not just Order 16. Thus, as
        Commissioner Lujan stated in the earlier letter, an employer is
        not subject to any sort of penalty or premium pay obligation if
        an employee who was truly authorized and permitted to take a rest



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January 28, 2002
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break, as required under the applicable wage order, freely
chooses without any coercion or encouragement to forego or waive
a rest period. Of course, as required by the various wage
orders, the required rest periods "shall be counted as hours
worked for which' there shall be no deduction from wages." (See,
e.g., section 12, Order 4-2001.)
Thank you for your interest in California wage and hour law.
Feel free to contact us with any other questions.

                                Sincerely,



                                Anne Stevason
                                Acting Chief Counsel

AS/mel

cc: Arthur Lujan
Tom Grogan
Roger Miller
Greg Rupp
Nance Steffen
Bridget Bane, Executive Officer, IWC
Stephen J. Smith, Director

                                                       2002.01.28