Originally published for HR California
Virtually all California employers and their employees are aware of workers’ rights to take paid rest breaks during a typical shift — that all nonexempt employees whose total daily work time is at least 3.5 hours are entitled to one 10-minute rest break for every four hours worked, or “major fraction thereof.”
But, what if the nature of the work doesn’t permit the employee to take a rest break? That’s a claim employees are increasingly making in the workplace — and the issue a California court recently tackled (Stewart v. Quest Diagnostics Clinical Lab’s, Inc. (Oct. 5, 2022)). Although the decision was unpublished, it offers a valuable lesson for employers on how to protect themselves from employees seeking class certification for rest break violations.
Case Details and California Legalities
In 2011, phlebotomist Pamela Stewart began working for Quest Diagnostics — a clinical laboratory company and diagnostic information services provider that employs Patient Service Representatives (PSRs) who are responsible for drawing blood samples from patients and preparing the specimens for lab testing, among other things.
In December 2020, Stewart filed a motion for class certification seeking to represent a class of fellow PSRs who weren’t compensated with one hour of pay for all instances where they didn’t receive a duty-free and uninterrupted 10-minute rest break consistent with California law.
Specifically, the plaintiff alleged that Quest’s staffing practices and its productivity and urgency goals impeded or discouraged its PSRs from taking rest breaks. For example, some locations require PSRs to see a minimum of 24 patients per day during a full-time shift, while other locations require PSRs to see between 25 and 30 patients during a shift. Productivity also is measured by the amount of time a patient must wait to be seen at a Quest location. Stewart alleged that Quest’s productivity and urgency policies applied to the whole class and that such policies made it “difficult or impossible” for class members to take breaks without missing their patient wait time goals.
Historically, rest break claims have been harder to certify than meal period claims for class action purposes. This is due in large part to the fact that documenting employee meal breaks is required, whereas doing so for rest breaks is not.
More specifically, California law simply provides that employers “shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period” and that, as previously stated, 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.” The law also states that authorized rest period time shall be counted as hours worked, which means the time shall not be deducted from an employee’s wages.
Further, the Industrial Welfare Commission (IWC) Wage Order states that if an employer fails to provide an employee a rest period “in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”
While not making a factual determination as to whether employees were precluded from taking breaks, the court found that Stewart had established the existence of a common question: Did Quest’s productivity and urgency goals impede employees’ legal right to take rest breaks?
Informing Employees of Premium Pay Entitlement
Stewart also sought to certify a class based on Quest’s failure to inform its employees not only that they are entitled to penalty payments for any missed rest periods, but also how to request a rest break penalty payment.
Additionally, she alleged that Quest’s written rest period policy was invalid because it’s “silent as to what constitutes a bona fide rest break” and doesn’t inform employees that rest periods should be uninterrupted and duty-free, in violation of the IWC Wage Order. Quest countered that its rest break policy mirrors the applicable IWC Wage Order’s language, which does not use the words “duty-free” or “uninterrupted.”
The court found that this aspect of Stewart’s rest period claim met the commonality requirement, stating that when it decides “the procedural motion of whether to certify a class, [it] focuses on whether the lawfulness of an employer’s policy can be determined on a class wide basis.” The court is neither weighing fact evidence nor making any finding that omitting the words “duty-free” or “uninterrupted” from Quest’s written rest period policy violates the IWC Wage Order. Rather, the court found that Quest has a uniform policy that applied to all class members and that the question of that rest period policy’s legality is suitable for class treatment.
Ultimately, the fact that Quest had not paid any rest period penalty during the class period, despite the allegations of class members having “routinely experienced missed, short, and/or late rest periods” was enough for the court to conclude that Stewart had identified a common issue to certify a class for the nonpayment of rest period penalty payments. Arguably, had the employer been able to produce evidence of payments of some rest period premiums, certification may not have been available.
While this case is an unpublished decision (meaning it’s not available for citation as precedent), it provides some instructive lessons for employers. Most importantly, employment law practitioners are seeing an increase in rest break claims. To the extent employers maintain productivity goals or expectations, these should either be modified to provide an express exception or carve-out for rest breaks or rest breaks should be addressed in the productivity rule itself. Some other takeaways include:
- Develop clear, well-written rest break policies that both follow California law and match the practical realities of your business. Review your policy to ensure it accurately reflects how breaks will be scheduled and taken. Inform employees how to report if/when breaks are not taken so premiums can be paid.
- Train employees about rest policies and rights. The court gave some weight to Stewart’s testimony that she didn’t recall any training about rest periods when she was hired or throughout her employment and she was never told she was entitled to rest period premiums. It’s important to educate employees about workplace policies and practices — not just at the time of hire, but throughout employment. It’s also important to document this training as proof that employees have been informed of their rights.
- Ensure staffing is adequate to allow rest breaks to occur. Employees are increasingly alleging that they’re unable to take rest breaks due to chronic understaffing or over-scheduling. Employers should be aware of any staffing issues that may preclude employees from taking their authorized breaks — including productivity or urgency goals.
- Audit rest break practices. Spot-check your workforce and confirm that employees aren’t just authorized and permitted to take rest breaks, but are truly taking them.
- Pay rest break premiums. Rarely is a workforce perfect in its ability to authorize and permit rest breaks 100 percent of the time. So, on those rare occasions when an employee truly isn’t permitted to take a rest break, pay the one-hour rest break premium. This case demonstrates that such evidence could help undermine certification of such a class.