Rest period requirements: consecutive minutes and scheduling flexibility

STATE OF CALIFORNIA GRAY DAVIS, Governor

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

ANNE STEVASON, Acting Chief Counsel

                                      February 22, 2002

Raymond Buendia, Esq.
P.O. Box 390433
San Diego, CA 92149-0433
Re: Rest Period Requirements
Dear Mr. Buendia:

 This letter is in response to your letter of February 15,

2002, directed to the Division Legal Section. You ask two ques­
tions regarding the enforcement policy of the DLSE with regard to
rest periods.
First you ask, are the "net" ten minutes for any four-hour
period required to be consecutive. The answer is yes.

       As you know, the IWC Orders state, at Section 12(A):
       "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. The authorized rest period
       time shall be based on the total hours worked daily at the
       rate of ten (10) minutes net rest time per four (4) hours or
       major fraction thereof. However, a rest period need not be
       authorized for employees whose daily work time is less than
       three and one-half hours (3 1/2) hours. Authorized rest period
       time shall be counted as hours worked for which there shall be
       no deduction from wages."
 The language of the IWC Order clearly indicates that there is

to be "a" rest period, not a succession of rest "periods". The DLSE
has consistently and historically interpreted "...[T]he word "net"
as used in the Orders as obviously intended to restrict the
employer from practices which would limit the rest period and, at
the same time, is designed to insure that the employee receives the
rest which the Commission has deemed necessary." (See DLSE Opinion
Letter 1995.05.28 and 1995.06.02, emphasis added.) In other words,
there must be a net 10 minutes of rest provided in each "work
period" and the rest period must be, as the language implies, dutyfre .
This requirement would, of course, preclude the employer
from using time during which the employee is required to change
from one work station to another as a rest period unless the time
allotted is, in fact, a net 10 minutes and is, as far as is
practicable, in the middle of the work period.

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Raymond Buendia, Esq.
February 22, 2002
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 In addition, at Section 13(B) of the Orders, the IWC has pro

vided that "[s]uitable resting facilities shall be provided in an
area separate from the toilet rooms and shall be available to
employees during work hours." This requirement clearly indicates
that the IWC intended that the "net" ten minutes was to be
available in a "rest area" if the employee so desired. Such a
requirement would prohibit the use by your client of time consumed
in the process of "moving from one work position to another" to
meet the "net" rest period requirements of the Orders.

 The second question you pose concerns the requirement that,

insofar as is practicable, the rest period is to be in the middle
of the work period. You ask whether there are circumstances that
the DLSE "accepts based on practicalities which will not render a
rest period not in the middle of each work period as a violation?"
We don't completely understand your question since the use of the
word "practicable" would seem to address your concern.

 As the language of the Orders state, the rest period is to be

"in the middle of each work period" "insofar as practicable". Ob­
viously, the language contemplates that the IWC foresaw situations
where the rest period could not practically be authorized in the
middle of the work period; else there would be no reason for the
use of the word "practicable". There may be situations which arise
when manning problems would make it impracticable to place the rest
period in the exact "middle of the work period"; but the employer
must then insure that it is, insofar as is practicable, near the
middle of the work period.

 In your factual scenario you state that your client rotates

the employees from work positions to relieve the employees from
boredom and work burdens. We would like to point out that while it
may be true that relieving the employee from boredom and work
burdens is helpful to the employees, keeping the employees alert
would also inure to the benefit of the employer.

 Thank you for your interest in California labor laws.

Yours truly,

Anne Stevason
Acting Chief Counsel

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Raymond Buendia, Esq.
February 22, 2002
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c.c. Arthur Lujan, State Labor Commissioner
Thomas Grogan, Chief Deputy Labor Commissioner
Assistant Chiefs
Regional Managers
Legal Sections