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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.

20 Comments

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

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

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

  9. 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.

  10. 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”.

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