The California Labor Commissioner recently issued a Frequently Asked Questions (FAQ) memo regarding breaks and lactation accommodation. The FAQ memo contains no new concepts, but emphasizes the following longstanding principles:

  • California employers must authorize and permit a net 10-minute paid rest period for every four hours worked (or major fraction thereof). To the extent practicable, the rest period should be in the middle of the work period. An employee is entitled to one hour of pay at the employee’s regular rate for each workday that a rest period is not provided;
  • A “net” of 10 minutes means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest;
  • Employers are required to provide suitable resting facilities that shall be available to employees during working hours in an area separate from toilets;
  • If the nature and circumstances of the employee’s work prevent the employer from giving the break as close as possible to the middle of the four-hour period, the employee must still be given the break but at another point in the work period;
  • Working through rest periods does not entitle an employee to leave work early or arrive late;
  • An employer may not require an employee to remain on premises during a rest period;
  • An employer may not require that an employee remain in radio communication during a rest period;
  • Smokers are not entitled to additional rest breaks;
  • The 10-minute rest periods are not designed to be exclusively for use of toilet facilities. The Labor Code and Industrial Welfare Commission Wage Orders contemplate that employees also will be permitted to limited breaks to use toilet facilities, and allowing employees to use such facilities does not satisfy the employer’s obligation to provide required rest breaks;
  • Employers are required to provide a reasonable amount of break time to accommodate an employee desiring to express milk for the employee’s infant child. If possible, the break time is to run concurrently with any break time provided to the employee. Break time that does not run concurrently with rest breaks need not be paid. An employer is not required to provide an employee break time for purposes of lactating if doing so would seriously disrupt the operations of the employer;
  • The employer is to make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area for the employee to express milk in private.  (Note, however, that federal law prohibits employers with 50 or more employees from requiring employees to express breast milk in a bathroom.)

The Labor Commissioner advises employees that they may file claims if their employers fail to meet their break obligations.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Hal Brody Hal Brody

Hal Brody is a partner in the Labor & Employment Law Department. His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law.

For over 25 years, Hal has represented employers in almost…

Hal Brody is a partner in the Labor & Employment Law Department. His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law.

For over 25 years, Hal has represented employers in almost every conceivable forum. He has appeared before the National Labor Relations Board in connection with union organizing campaigns and unfair labor practice charges. He has handled numerous labor arbitrations. He has appeared before the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing on a broad range of employment discrimination matters, and he has practiced before the California Division of Labor Standards Enforcement and the United States Department of Labor on a wide variety of wage and hour issues. Although very much a labor generalist, over the past several years, Hal’s practice has focused on employment litigation. He has appeared before trial and appellate courts throughout California, successfully representing employers in such matters as wrongful discharge, sexual harassment, ERISA, wage and hour, and employment discrimination lawsuits. The diversity of Hal’s practice can be gauged by the range of employers he has represented in such litigations: financial institutions; museums; hospitals; airlines; retailers; newspapers; food processors and distributors; theme parks; publishers; and television and motion picture companies.