Category Archives: Rest Breaks

by Administrator | December 11, 2012 · 11:07 pm

Want to Be a “Private Attorney General” and Fight Labor Injustice?

In 2004, our great State enacted the “Private Attorneys General Act” (commonly known as “PAGA” – Labor Code § 2699). This statute gives an incredible amount of power to everyday employees who want to fight for workplace rights.

Under the PAGA, an employee may bring a lawsuit for Labor Code violations committed against the employee by his or her employer on behalf of other current or former employees against whom one or more of the alleged violations was committed. What is interesting here is that PAGA is not referring to class actions, it creates a private civil action on behalf of other employees. That means the PAGA contains no specific class certification requirements.

Employers are liable for a penalty of $100 for each aggrieved employee per pay period for the first violation and $200 for each aggrieved employee per pay period for each subsequent violation. The aggrieved employee does not, however, recover the full penalty amount. Seventy-five percent of the penalty goes to the Labor and Workforce Development Agency for enforcement of labor laws and education, and only 25 percent is recovered by the aggrieved employees. In addition to the civil penalty, a prevailing employee (but not a prevailing employer) may be awarded “reasonable attorney’s fees and costs.”

What type of penalties are we talking about?

Failure to pay wages immediately upon discharge.
Failure to pay with a payroll check with sufficient funds.
Illegal deductions or withholdings from wages.
Failure to provide statutorily compliant paystubs.
Failure to provide proper meal and/or rest breaks.
Failure to pay all tips and gratuities left for workers.
Failure to pay overtime for all hours worked in excess of 8 hours in a day or 40 in a week.
Failure to pay minimum wage.
Failure to reimburse for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.

If you are currently suffering from one of the above Labor Code violations, you can become a private attorney general, and sue on behalf of your fellow employees to right the wrong. If you have any questions about PAGA or the labor code violations listed here, feel free to give me a call.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

My Boss Doesn’t Let Me Take A Rest!

If your boss does not let you take a rest break, or forces you to work during your rest breaks, what can you do? What is owed to you? According to California Labor Code Section 226.7:

(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

Moreover, the applicable wage order to your industry likely includes language similar or identical to this (section 12):

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.

If you’ve been denied rest breaks, or forced to be ‘on-call’ during your rest breaks, you might have a legal claim. If you want to know more, check out my earlier post on a recent rest break case. The case, commonly known as “Brinker,” was big news because the California Supreme Court weighed in and attempted to resolve lingering questions for wage and hour lawyers all across the state. I’ve also written an entire post exclusively on rest breaks. Check out both to learn more information.

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Filed under FLSA – Fair Labor & Standards Act, Rest Breaks, Wages and Hours

Tagged as california, employment law, rest breaks, wages & hours

by Branigan Robertson | August 31, 2012 · 2:32 pm

Pregnancy Series #1: California is Friendly to Moms Breastfeeding in the Workplace

My wife is 5 days overdue with our first child. Once the baby is out my wife wants to breastfeed our daughter. Although my wife no longer works, I couldn’t help but wonder, what are a new mom’s rights in the workplace? Can you breastfeed on the job? What if your boss doesn’t let you? Can you use a breast pump at work? Does your boss have to provide you with a private room, or do you have to do it in a bathroom stall?

In 1998, California’s legislature resolved to improve the life of Mom’s in the workplace. It passed a series of statutes, including California Labor Code § 1030-1033. The most important is § 1030:

Every employer…shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee…shall be unpaid.

Continue reading →

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Filed under Discrimination, Family & Medical Leave, FMLA - Family & Medical Leave Act, Pregnancy, Rest Breaks, Sex Discrimination, Wages and Hours

Tagged as breast pump, breastfeeding, new moms, pregnancy discrimination, pumping at work

by Branigan Robertson | August 21, 2012 · 10:02 am

Brinker Part II – Lunch & Rest Breaks in California

I mentioned in an earlier post that I would post more information on the California Supreme Court decision Brinker Restaurant Corp. v. Superior Court. The Brinker decision was huge in the employment law world. It clarified some of the most tricky wage and hour issues.

Here are a few of the important rulings:

Lunch breaks: An employer is supposed to give a 30 minute uninterrupted meal break to employees who work more than five hours. An employers obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires. The employer does not need to ensure that no work is done. An employer cannot discourage or impede meal periods. If the employer has the employee do work during his or her lunch break, the employee must be paid for it. If the employer relinquishes control and the employee decides to keep working with the employers knowledge, then the employer must still pay the employees hourly rate, but not an additional premium. For those who like bullets:

Employees who don’t work more than 5 hours don’t get a meal period.
Employees who work over 5 but not more than 6 hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the 5^th hour.
Employees who work more than 6 but not more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the 5^th hour.
Employees who work more than 10 hours get a second meal period. If they don’t work more than 12 hours they can waive the second meal period. If they don’t waive it, the meal period must begin by the end of the 10^th hour.

Continue reading →

CA Supreme Court Rules on Brinker Wage & Hour Case

Some big news just hit the airwaves: The California Supreme Court just ruled, in Brinker Restaurant Corporation v. Superior Court, S166350, that employers are under no obligation to ensure that workers take legally mandated lunch and rest breaks. To put it as the Court put it:

“we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”

The unanimous opinion was authored by Associate Justice Kathryn Werdegar. The Court explained that neither state statutes nor the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods. Instead, an employer must provide its employees with a uninterrupted 30-minute duty-free break during which the employee is at liberty to do whatever he or she pleases. Absent some sort of waiver, a meal break must be afforded after no more than five hours of work, and a second break provided after no more than 10 hours of work.

After I spend a good deal of time analyzing the case I’ll post more information.

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Filed under Rest Breaks, Wages and Hours

by Branigan Robertson | September 23, 2011 · 8:38 pm

Do I get a rest break at work?

I’m an hourly employee. Doesn’t my jerk boss have to give me a rest break? What if he doesn’t?

Yes, you’re entitled to a break! That jerk is in for some serious suits if he doesn’t! And I don’t mean clothing. I mean lawsuits. California law states that any hourly employees that have not been provided at least a 10 minute rest period for every 4 hours of work, that employee is entitled to one hour of pay. And my boss can’t require me to work during my break, obviously. He can, however, require me to stay on the premises. CA Labor Code § 226.7.

For example: If I make $30/hr and my boss doesn’t let me take a 10 minute break within a 3.5 – 4hr period, my boss is supposed to compensate me with one hour of pay ($30) on top of the hours I worked that day.

I know what you’re telling yourself right now. “I’m not going to sue my boss for $30 bucks, you idiot.”

True. However, you might want to sue your boss if I let you in on a little secret. That $30 penalty applies per day. And if you add them all up, that could be a lot of money. Let say you’ve been denied a rest break every day for the past three years. You could be owed $22,500.

That might be worth suing over…. If you add that to a few other wage and hour violations, that number could hit $100,000 with ease. That might motivate you to talk to an employment attorney.

A few more details on rest breaks:

The break must be a paid break. Your boss can’t deduct 10 minutes from your hours every time you go for a smoke, stretch, or stroll. Also, to the extent possible, you have to take the break near the middle of each work period. This is flexible, though. Lastly, you don’t have to take the break if you don’t want (provided your boss isn’t ‘encouraging’ or forcing you not too).

Category Archives: Rest Breaks

Want to Be a “Private Attorney General” and Fight Labor Injustice?

My Boss Doesn’t Let Me Take A Rest!

Pregnancy Series #1: California is Friendly to Moms Breastfeeding in the Workplace

Brinker Part II – Lunch & Rest Breaks in California

CA Supreme Court Rules on Brinker Wage & Hour Case

Do I get a rest break at work?

This blog is for employees.

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