Can Employers Require Employees to Remain on Premises? (2018)

A reader of this blog recently asked an intriguing question:

“Your boss may require you to remain on work premises during your rest break.: Is this still true after the recent California Supreme Court decision?

I believe the reader was referring to Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257 (2016). That decision said rest breaks in California must be duty-free:

state law prohibits on-duty and on-call rest periods [ . . .] employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

So work must not intrude on a rest break.

What’s interesting is that the court seemed to contradict itself regarding the requirement that employees stay on premises during rest breaks. On the one hand, the court stated:

Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A)), they impose practical limitations on an employee’s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain on site or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control.

Based on that, it seems pretty clear that employers CAN require employees to stay on premises during rest breaks.

On the other hand, the court confusingly went on to mention that requiring employees to remain on call would prevent employees from taking a walk of 5 minutes out and back during their rest breaks, and based in part on that, employees should not be on call during their rest breaks. The court also stated this:

Nonetheless, one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods. [emphasis added].

I’m not sure what to make of the above statements as they seem contradictory.

I think the definitive rule on this issue for now will remain the interpretation set out by the California labor board. That agency is, after all, charged with enforcing rest break laws in the state of California. On their website, the California labor board states:

Q. Can my employer require that I stay on the work premises during my rest period?

A. Yes, your employer can require that you stay on the premises during your rest break. Since you are being compensated for the time during your rest period, your employer can require that you remain on its premises. And under most situations, the employer is required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.[revised as of 12/8/17]. No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services, Inc., (2016) 5 Cal.5th 257, 269, the California Supreme Court held that the rest period requirement “obligates employers to permit-and authorizes employees to take-off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.” (citation omitted) As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.

While the supreme court is not bound by the labor board’s interpretations, the court definitely gives them weight. So I think the answer is: during rest breaks, employees may NOT be required to remain on premises.

57 Comments

  1. William on August 29, 2018 at 11:07 am

    My niece submitted a two week notice because she got another job. Her employer let her go that day because they didn’t want her to have access to customer files. Do they have to pay her wages up to the date she determined to be her last day?

    • Eugene Lee on August 29, 2018 at 7:17 pm

      No, they only need to pay her up to her last day of actual work (unless there is an agreement to pay her up to her designated last day).

  2. Laura Magana on August 21, 2018 at 3:31 pm

    Now that employers can not restrict their employees from leaving premises during paid rest breaks, if they get into a car wreck, is the employer liable?

    • Eugene Lee on August 29, 2018 at 7:34 pm

      I’m not a personal injury lawyer, but I doubt it since employers aren’t generally vicariously liable for what employees do on their own time, which in this case would be break time.

  3. Christine on July 21, 2018 at 7:58 pm

    Is it a state law making it mandatory an employee take PTO for shortage on actual time worked?
    Can an employer put ‘PTO to 80 hours’ on a timecard to make up any shortages on time worked?
    In California, can an employer put restraints on rest breaks when the employee works in a hospital setting?

    • Eugene Lee on August 20, 2018 at 9:05 am

      An employer MAY use PTO to cover shortages of actual time worked, provided that is what their PTO policy says. Employers in California aren’t required to give PTO, but if they chose to do so, they must follow their own PTO policies consistently and fairly. California employers aren’t generally entitled to put restraints on an employee’s rest breaks, although the healthcare industry does have certain exceptions.

  4. Safe & Hungry on July 17, 2018 at 10:27 am

    My employer tends to schedule mandatory safety training during lunch breaks. All employees must attend the safety meetings and are not allowed to leave (unless they want to get a written warning for not following orders).
    The managers on duty think they have found a loop hole by providing lunch to each employee (boxed/catered lunches), stating that the employees can still eat and attend the safety meeting.

    Is it legal for my employer to do this?
    I always ask if I can go off premises to eat and get denied.

    • Eugene Lee on August 20, 2018 at 9:08 am

      The short answer is probably no, that’s not legal. Meal breaks must be duty-free and uninterrupted. That is unless: 1) you’ve signed a meal break waiver (which only applies if your shift is less than 6 hours long) or 2) you’ve consented to an on-duty meal break. My suggestion is you look through your personnel file and see what you’ve signed.

  5. Me on July 2, 2018 at 1:45 pm

    I work the overnight shift as an hourly manager for a big box retailer. Recently the store manager has allowed employees to leave the store during the meal break except for me. Since not all employees leave during break, I am required to stay. I must also answer the phones if any calls come in and answer employee questions during my break. Is this legal or should I be compensated since I am not relieved of all my duties.

    • Eugene Lee on August 20, 2018 at 9:09 am

      No that is not legal. You are being denied your meal break. You should consider filing a labor board complaint. Please feel free to give us a call at (213) 992-3299 and we’ll be happy to discuss it with you.

  6. AL on June 22, 2018 at 1:23 pm

    I work as an on-site security guard with 5 other guards, we all get paid for our rest and meal breaks. If I wanted to am I allowed to leave the work site in order to obtain a lunch, although I am being paid for my meal time?

    For examble can I go down the street to a chevron on my PAID meal break to get food/water. Meaning I would be leaving my job site.

    I had our lead supervisor, say I was not allowed to leave and return during PAID meal breaks.

    • Eugene Lee on August 20, 2018 at 9:11 am

      Unless you’ve signed a meal break waiver (and your shift is less than 6 hours long) or an on-duty meal consent, you are supposed to have your lunch break and be allowed to leave. If that isn’t happening, then the employer must not only pay for your lunch break, they must ALSO pay you a premium of 1 hour per day this happens. If that isn’t happening, you should consider filing a labor board complaint. Please feel free to give us a call at (213) 992-3299 and we’ll be happy to discuss it with you.

  7. James web on June 11, 2018 at 8:52 am

    I do 24 hour shifts and get three one hour unpaid breaks but my employer won’t let me leave for those breaks. Is this legal?

    • Eugene Lee on August 20, 2018 at 9:13 am

      Generally, no, that is not legal, you must be allowed to leave. Also, in a 24 hour shift, you must receive FOUR separate 30-minute meal breaks and SIX separate paid 10-minute rest breaks. The breaks cannot be combined either. It sounds like your employer is breaking the law. You should consider filing a labor board complaint. Please feel free to give us a call at (213) 992-3299 and we’ll be happy to discuss it with you.

  8. Glenise Webb on June 5, 2018 at 1:11 am

    Your comment is awaiting moderation.

    Hi I have one question please…
    I got promoted to part time assistant manager in Dec. 2017 from the beginning of December to the middle of May 2018 I’ve worked 35-38 hours per week. We know have a new store manager and she says I have to go down to 24 hours a week. I explained I’ve been working full time hours since I got promotion because I was a stocker and wanted to become frieght manger, and that my financial life was accustomed to those hours. Can she just change my hours out of no where like that?

  9. GFW on May 22, 2018 at 11:45 am

    My employer has a vacation cap. That is you can accrue or accumulate up to two years of vacation after which you no longer accrue any vacation.
    For instance I accrue 3 weeks of vacation (120 hours) per year. If I do not take vacation for two years the accrual process stops (my accrued vacation balance never exceeds 240 hours and any vacation I would accrue after the 240 hours does not accrue/is lost).
    If I work for three years, taking no vacation, and then terminate my employment am I due just the 240 hours accrued or does the company owe me the additional 120 hours for the third year?

    • Eugene Lee on May 23, 2018 at 11:09 pm

      The employer has the right to set a cap on vacation accrual. That means that, upon termination of your employment, the employer cannot be required to pay out your vacation in an amount greater than that cap. So in your case, the employer must pay you no more than the maximum of 240 accrued vacation hours.

  10. Cassandra on April 25, 2018 at 8:06 am

    Hi I work housekeeping at a local hotel when I was hired I was never told it was apart time job or that I would be on call
    I get called off frequently sometimes only working one or two days a week and not full days maybe only two hours of work
    Recently I’ve had some health issues a d had to take a day off hear and there well two weeks ago I felt faint and really sick and wanted to go to the emergency room
    I asked the girls I worked with if they could take on my work area for the day they could cause it was a light day
    And they would collect my hours
    Well I clocked out and was trying to leave and my boss comes up to me upset saying I should have called off before shift if I wasn’t feeling well
    I explained my symptoms came on all of a sudden three hours ago I felt fine well he proceeded to get upset asking what I expected him to do and he didn’t want me to leave to the hospital
    So I had to finish my shift worried I’d loose my job
    He’s also requested that no cleaners or water be used on bathroom fixtures
    Just to wipe the water marks off with a dry rag
    This is my first job and idk what to think is all this legal??

    • Eugene Lee on April 29, 2018 at 7:15 pm

      If you have worked for the employer for at least 90 days, then you have been the victim of denied sick leave violation. If you are feeling sick, the employer is required to permit you to take a sick day. Moreover, you are entitled to have at least 3 paid sick days per year. There are likely other violations, but more information would be needed. For instance, you might be owed wages for being “on-call”. And if you are called in but work less than half your scheduled shift, you might be entitled to reporting time pay. You might consider filing a labor board complaint.

  11. Sue on April 3, 2018 at 3:33 am

    I am scheduled for shifts ranging from 5 hours to 5.5 hours in length. A few times each week, I have clocked into work and have been asked to take an unpaid 1/2 hour break within an hour of clocking in, “because it is slow.” Sometimes, I am told that I am being sent home after 1-1/2 hours of work. On my unpaid meal break, we are allowed to order a meal at a reduced rate. I have been told that I must eat the meal in the store, and cannot save any of the food. What are the laws regarding these three situations?

    • Eugene Lee on April 29, 2018 at 7:20 pm

      If you are being required to eat in the store, that is a meal break violation. Meal breaks are your personal time – you must be allowed to go where you want and do what you want during those 30 minutes. It’s nice that your employer is giving you reduced rate meals, but that doesn’t entitle them to deny your meal break rights. Also, if you are being sent home before you have worked at least half your scheduled hours, you may be entitled to reporting time pay. I think you should consider filing a labor board complaint.

  12. cjohn on March 27, 2018 at 3:37 pm

    If you are an hourly employee, who works different venues, is there to be a designated rest/break area where you take your rest break? Is your 10-minute break from post to post, or does it start when you sit down in designated break area and ends 10-minutes later. Hence, your time needed to travel to and return from your break is not included in the ten minutes. And what about restroom breaks, are you required to use your 10-minute break as a restroom break?

    • Eugene Lee on April 29, 2018 at 7:23 pm

      The employer is required to make 10-minute paid rest breaks available, but no more. So the 10-minutes would be “post to post”. Travel time must be completed within the 10 minutes. Of course, if the employer requires you to use a designated area, and traveling to and from the designated area means you get almost no or no rest break, that could be a violation. Also, restroom breaks do NOT constitute paid rest breaks. You must be permitted to use the restroom when, and as often as, needed. That is a health and human safety requirement. They are in ADDITION to paid rest breaks.

  13. Esther Smith on March 6, 2018 at 8:34 pm

    Are Limousine drivers required to take an unpaid 30 min lunch if paid hourly?

    • Eugene Lee on April 29, 2018 at 7:24 pm

      Generally, yes, assuming your shift exceeds 5 hours and you haven’t signed a meal break waiver. There are of course exceptions (like if you’re in a union and the collective bargaining agreement says something else).

  14. Mary on February 26, 2018 at 7:32 pm

    Can your employer ask you to clock out for lunch and clock back in every single time they need to pull you out of lunch? And clock back out, so they are not taking responsibility to pay you a meal penalty? But they still want you to take a 30 min lunch.
    This was just said on a conference call today 2-26-18

    • Eugene Lee on April 29, 2018 at 7:26 pm

      If your lunch break is interrupted, then it has been denied. The employer must allow you to take another lunch break that is uninterrupted. If that doesn’t happen, you are entitled to a meal break premium of 1 hour per each day your lunch break was denied / interrupted / late, etc. Exceptions do apply, of course. If you feel your meal break rights have been violated, you should consider filing a labor board complaint.

  15. Christine Church on February 2, 2018 at 7:41 am

    Can an employer tell you if you leave the premises for lunch, you have to take an hour?
    We currently take a 30 min lunch break. We work approximately 6 miles from town. He is saying that if we go to town for lunch it is mandatory we take an hour lunch break. I have been able to call in my food order, leave, go pick it up, eat on the way back and return 5 minutes before my 30 min lunch break is up. He is threatening to make it a policy if we leave the premises and not take an hour lunch. What are my rights since it is my 30 minutes time?

    • Eugene Lee on April 29, 2018 at 7:29 pm

      That’s pretty interesting. The employer is effectively discouraging you from leaving the premises to take your meal break. I’d argue that discouragement equates to a denial of your meal break. Of course, technically, the employer has the right to require you to take a 1 hour meal break, as setting your work and break schedule is the employer’s discretion. However, here, it appears the employer is using it as a tool to discourage you from leaving the premises. You should consider filing a labor board complaint.

  16. Kim on January 22, 2018 at 1:30 pm

    Hi I have a question if i put in to take a day off using a floating holiday & the request was for a baptism & was denied because. My employer states two people. Already have that day off. Even though i put in. With time frame permitted.

    • Eugene Lee on April 29, 2018 at 7:27 pm

      Hmmm? I don’t see a question.

  17. Theresa on December 22, 2017 at 10:44 am

    My company considers me (and my colleagues) an exempt employee even though I am not an officer, nor responsible for any management decisions. As an exempt employee, I am not entitled to overtime pay. However, if I should leave an hour or two for a doctor’s appointment, I must use either my sick time or pto for any shortages in actual time worked for that day. How can it be such a windfall to the company?

    • Eugene Lee on December 26, 2017 at 10:06 am

      You may well be misclassified as an exempt worker. There are many requirements that must be met to be legally exempt from the Labor Code’s protections. If you aren’t supposed to be exempt, you could be entitled to unpaid overtime, break premiums, and penalties, etc.

  18. Jerry carroll on December 21, 2017 at 8:45 am

    We accumulate sick leave,vacation and comp time. Max is imposed on vacation and comp time that we can accumulate before losing it, but not sick. We have been allowed to take any of the three for time off. Specifically, when out for surgery I took only vacation because I was near max and was was close to losing any more monthly accumulation. The surgery went bad and doctor took me off for six months. For first month I charged time off to vacation which was approved. Then I mixed vacation and sick leave depending on how close I was getting to max vacation so as not to lose any. When doctor took me off for another six months and it became likely that I would be retiring my boss started changing my time card to all sick and I stopped accruing vacation. So far I have lost over 40hrs of vacation because I am at the max. Is employer, right in changing my time card to their advantage so that I no longer accumulate vacation which will extend my paid time off.

    • Eugene Lee on December 21, 2017 at 2:07 pm

      Unfortunately, the answer to that lies in your employer’s policies. California labor laws do not mandate that employers give employees paid vacation or comp time. The employer gets to set the policy on usage of vacation and comp time, so long as it is not discriminatory or retaliatory. The employer has to comply with its own policies. And while the employer can set a max limit, it cannot have a use it or lose it policy where any unused vacation or comp time is forfeited at the end of each year. As for sick pay, that IS mandated by California labor laws. If you were sick or out due to surgery and you requested sick pay, then the employer must give it to you. If you were denied sick pay, and it sounds like you migh t have been, then you should file a labor board complaint.

  19. Blanca on December 11, 2017 at 11:05 am

    I worked for Chipotle as a service manager, and they’re very serious about food safety. We have a book that managers have to fill out on their shift and they are declared a Food Safety Leaders (FSL). We have something called Patch Leaders that manages many Chipotle’s stores in a certain area, and I was informed by our Patch Leaders that FSL are not allowed to leave the general area of our store during our breaks, because if something goes wrong in the store with a customer or an unannounced visit/audit happens the FSL needs to be there to take ownership. Is this right?

    • Eugene Lee on December 13, 2017 at 10:51 pm

      I would need more information but I suspect that is wrong. It sounds to me as if FSL are non-exempt hourly paid workers. If so, then meal and rest breaks must be made available to FSL, and the employer must not impeded or discourage the taking of those breaks in any way. Meal and rest breaks must be free of duty and employer control and employees must be allowed to leave the premises while on those breaks. If not, then the breaks have been “denied” and the employee is owed a rest break premium of 1-2 hours per day that the breaks were denied.

      You should consider raising your concern — in writing — to your supervisors. If they don’t address the problem, consider filing a labor board claim or contacting a lawyer to perhaps start a class action.

  20. Andrea Ramirez on November 30, 2017 at 6:58 am

    I work at a small thai spa place as a receptionist, i noticed that i was working 5.5 hours but my check was showing 5 hours. i confronted my boss about it and she said because we get a 30 minute break, which isn’t possible because i am the only receptionist working at the time and i cannot leave the front desk unattended. So when i confronted my boss about it she seen she was wrong for making us work so i asked her if it was possible to get paid the 5.5 hours because i don’t need a break unless i work over 6 hours. And she agreed then decided not to do it because of her “policies”. So then she said we need to take our breaks but stay on the premises just in case we are needed to work while on break. I want to know if this is against the laws, and if she is trying to take money away from our checks?

    • Eugene Lee on December 1, 2017 at 6:59 pm

      If your boss requires you to stay on the premises during meal breaks, that is a violation and you are entitled to a meal break premium of 1 hour per day. Also, if you work 5.5 hours, you must be paid 5.5 hours, not 5 hours. Your boss cannot deduct 30 minutes for a meal break that you are not taking because you are the only receptionist working. That is another violation.

      I recommend you consider filing a labor board claim.

  21. Sandra on November 25, 2017 at 4:44 am

    Hello Sir.
    My daughter works for Victoria Secret. She started work yesterday Nov. 24 at 2pm. it is now Sat. Nov 25 4:45am she has been permitted 1 half hour break and 1 ten min break. If any what laws have been broken. Her actual schedule was 2pm to 12am

    • Eugene Lee on November 27, 2017 at 11:21 pm

      The answer partly depends on when Victoria’s Secret sets the cutoff for when one workday ends and a new one starts. Most employers set it at 12 am midnight. Assuming that’s the case here, your daughter worked two shifts. The first one was from 2 pm to midnight, i.e., 10 hours. For that, she should have received one 30-minute unpaid lunch break and two 10-minute paid rest breaks. The second shift was from 12 am to 4:45 am. For that shift, your daughter should have received one 10-minute paid rest break. So it appears your daughter was denied 1 to 2 rest breaks (you don’t say when she got her 1 ten min break). That violates the California rest break law (Labor Code 226.7 and section 12 of Wage Order 7). Your daughter should bring the violation to her employer’s attention (in writing is always best). If the employer doesn’t fix the problem by, say, paying her 1 hour of rest break premium for each day a rest break was denied, then she should consider filing a labor board claim.

  22. kimi on October 29, 2017 at 3:21 am

    can I drink(water or soda) or snack while on work hours, other than rest or meal breaks.

  23. kimi on October 29, 2017 at 3:18 am

    can I drink or snack while on work hours, other than rest or meal breaks.

    • Eugene Lee on October 29, 2017 at 8:42 am

      That is entirely up to your employer, however, employer restrictions on eating and drinking should not jeopardize the health and safety of any workers. Also, if an employee has disability-related needs for certain food and drink, the employer may be subject to an obligation to engage in an “interactive process” to provide “reasonable accommodation” to that employee.

  24. Alex on October 24, 2017 at 1:05 pm

    Company messed up my checks twice in a row he cover rest of what he owes me on personal check. Can he 1099 those checks? And I don’t know how much I exactly make and every time I ask my boss how much I make he says he pays me enough but my checks say different. What do I do

    • Eugene Lee on October 24, 2017 at 2:39 pm

      We would need to hear more details about your case. Please give us a call at (213) 992-3299 and we’ll be happy to go over it and tell you what we think.

  25. kevin renel on October 12, 2017 at 5:48 pm

    Hi Eugene – what is the legal time period between eight hour shifts in which an employee can punch back in for the next 8 hours under California law? For example If an employee works from 3:30pm until midnight with a 30 minute meal break -what time the next day can the employee punch back in on a flex schedule – is after 8 hours, 10 hours or 12 hours?

    Thank you

    • Eugene Lee on October 12, 2017 at 6:02 pm

      Currently, California law does not mandate a minimum down time between shifts. Of course, there are some industry specific exceptions, such as truck drivers. But in general, back to back to shifts are legal.

      Note, California does have a 1 day of rest in 7 requirement, but the California Supreme Court clarified that the rule resets at the start of each employer-defined workweek. So you could work the last 6 days of a work week, then the first 6 days of the next workweek, resulting in 12 consecutive days worked, yet that would not violate the 1 day in 7 rule because they fall in separate work weeks.

  26. Melissa Mcneill on October 11, 2017 at 8:35 pm

    Can the tell not to smoke before or during so call. Not break

  27. Mel Tuazon on September 22, 2017 at 1:36 pm

    Where i work, employees are asked to work back to back and it is Mandatory. When we mentioned that it’s illegal to do back to back, Manager said…”No it’s not, because we ate in a Retail Store”, my question is, is it true that being an employee at the Retail they can make us work back to back?
    The time is…7:30pm to 11:30pm then, come back in at 7:00am the next day? We were told it is Mandatory so we have to comply.

    Would love to hear for answer pls…we will highly appreciates any answer.
    Sincerely,
    Mel Tuazon

    • Eugene Lee on October 3, 2017 at 7:45 pm

      Unfortunately, the employer has the right to set the work schedule. You are entitled to 1 day of rest in a 7 day work week, however. Also, you must of course be permitted to take your meal breaks and rest breaks.

  28. Ally Soto on September 12, 2017 at 9:22 pm

    Can an employer restrict the use of a mobile device while on my break?

    • Eugene Lee on October 3, 2017 at 8:00 pm

      On a rest break? That’s a good question. I would need more information. On a lunch break? No, if it’s an unpaid lunch break. If it’s unpaid, that means that time is yours to use however you wish.

      As of 12/8/17, the labor board states that an employer may not impose any “restraints” on employees during their rest breaks.

    • Nolan Bryce on October 4, 2017 at 11:32 am

      If the employer exerts any control over what you do on your rest break, then it is not a rest break. The purpose of a rest break is to “rest” from the work you have been doing so you can come back ten minutes later and be refreshed and ready to continue the day. While the labor board may suggest that you have to stay on premises, you can certainly get up and walk around, go up and down stairwells in a taller building, walk laps around atriums, or around buildings.

      • Eugene Lee on December 10, 2017 at 9:13 pm

        As of 12/8/17, the labor board has revised their position and now states that employers may not impose “restraints” on employees during their rest breaks. So now more than ever, Nolan’s statement is correct that an employer may not exert “any control over what you do on your rest break”.

        • Lola on August 14, 2018 at 10:57 am

          Hi,
          At my work we are not allowed to leave premises on our breaks, only on lunch, which we clock out. HR department stated that because we are clock-in on our breaks and something happens to us on our breaks while we are gone my boss could get sue?
          Point is, can they restrict us from leaving premises during breaks?

          • Eugene Lee on August 20, 2018 at 9:01 am

            The Supreme Court has made clear that an employer may not restrict an employee to the premises during rest breaks, even though the rest break is on the clock. That sounds like a clear violation of the law by your employer. Please feel free to give us a call at (213) 992-3299 and we’ll be happy to discuss it with you.

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