In California, the Industrial Welfare Commission Wage Orders requires that employers must authorize and permit nonexempt employees to take a rest period that must (so long as its practicable) taken in the middle of each work period. The rest period is based on total hours worked daily.A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods.
Under Labor Code §1030 every employer must 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 run concurrently with any break time already provided to the employee and any break time that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission need not be paid.
The employer shall 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. The room or location may include the place where the employee normally works.An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.
If an employer fails to provide an employee a rest period in accordance, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Labor Code Section 226.7.
Therefore, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday, not one additional hour of pay for each rest period that was not provided during that workday.
In summary, if your employer is not allowing you to take rest periods, there is something you can do about this situation: You can either file a wage claim with the Labor Commissioner’s Office, or you can file a lawsuit in court against your employer to recover the the premium of one additional hour of pay at your regular rate of compensation for each workday that the rest period is not provided.
If your employer does not provide you with the opportunity to take a break for lactation purposesIf you feel your employer is not providing you with adequate break time or a place to express milk as provided for in Labor Code section 1030, you may file a claim with the Division of Labor Standards Enforcement (DLSE).
In addition, any employee who is a victim of retaliation for either asserting a right to lactation accommodation or for complaining to the DLSE about the failure of an employer to provide this accommodation may file a retaliation claim with DLSE pursuant to Labor Code Section 98.7 .
In the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of “one additional hour of pay” under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged rest period violation.
If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you object to the fact that he’s not providing employees with rest breaks, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file a lawsuit in court against your employer.