Meal and Rest Breaks for “On Call” Health Care Employees

As the California Supreme Court has noted, an employer meets the requirements of the applicable Wage Order’s meal period requirement if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Id. at 1036.

However, in the health care industry, as discussed in a Division of Labor Standards Enforcement (“DLSE”) Opinion Letter approved by the Brinker Court, an employer may require an employee to remain on its premises, “so long as the worker is relieved of all duties during the meal period.” Dept. Industrial Relations, DLSE Opinion Letter No. 1996.07.12 (July 12, 1996) p. 1 (“1996 Opinion Letter”). In that Opinion Letter, the DLSE discussed whether an employee that is required to carry a pager during a purported meal period must be compensated. The DLSE determined that: “[s]o long as the employee who is simply required to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for. On the other hand, if the employee responds, as required to a pager call during the meal period, the whole of the meal period must be compensated.”

Some questions have been raised regarding de minimis time required to respond to a particular question or request after response to the pager. The DLSE takes the position that if the employee is required to respond and is called upon to respond, the whole of the meal period becomes compensable. Since the IWC orders required that the employee have a duty-free meal period, any “duty” which interferes with the meal period (even if the “duty” is de minimis time) would require that the whole of the meal period be paid. Id. at 2 (emphasis added). The Brinker Court agreed with the DLSE’s interpretation of the Wage Orders. Brinker, supra, 53 Cal.4^th at 1036.

Pursuant to the 1996 Opinion Letter and Brinker, an employer may require the employees to carry work phones, but any time they even answer a call during their purported meal period, even if such time is de minimis, then the meal period is considered on-duty and must be paid, unless the entire meal period is started again from the beginning and the employee is otherwise relieved of all duty thereafter for thirty consecutive minutes.

The applicable Wage Orders provide that within the health care industry, the term “hours worked” means the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act (“FLSA”). The applicable regulation interpreting the FLSA requires that the employee “must be completely relieved from duty for the purposes of eating regular meals . . . The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. 785.19(a). Though the regulation allows an employer to require its employees to remain on its premises during a meal, the employee must still be otherwise “completely freed from duties during the meal period.” 29 C.F.R. 785.19(b).

Brinker clarified that the Wage Orders require an employer to provide an employee with one ten-minute rest break for shifts from three and one-half to six hours in length, a second ten minutes for shifts lasting between six and ten hours, and a third ten minutes for shifts lasting from ten to fourteen hours. Brinker, 53 Cal.4^th at 1029. The break time must be duty free. Dept. Industrial Relations, DLSE Opinion Letter No. 2002 .02.22 (Feb. 22, 2002), (“2002 Opinion Letter”). The ten minutes of rest required during each four hour period (or major fraction thereof) during a shift must be consecutive, meaning an employer cannot consider numerous brief rest periods during a four-hour work period to constitute the required ten consecutive minutes of rest per four hours worked. Id., cited with approval in Faulkinbury v. Boyd (2013) 216 Cal.App.4^th 220, 156 Cal.Rptr.3d 632, 644.

There is no on-duty rest break exception as there is for meal breaks, and there is similarly no opinion letter from the DLSE indicating that in the rest break context, carrying and responding to a work phone is considered to be time not under the employer’s control or direction.

Employers are required by the Labor Code and the applicable Wage Order not only to provide their employees with off-duty meal periods, but also to record the beginning and end of any such breaks.