Employment Law Blog

An employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not an actual law was being violated. Labor Code § 6310; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300; Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 87; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Thus, it is immaterial if the practice was actually unsafe or whether there was an OSHA standard that was actually being violated. The employee need only have complained in good faith about the working conditions or practices.

The test for whether a worker is an independent contractor or an employee is whether the employer has the right to control the manner and means of the worker’s performance.  S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349–351.  A number of different factors contribute to the extent of control that an employer exercises over its workers: (1) the right to discharge at will, without cause; (2) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (3) the length of time for which the services are to be performed; (4) the method of payment, whether by the time or by the job; (5) whether the one performing services is engaged in a distinct occupation or business; and (6) whether or not the work is part of the regular business of the principal.  Id.

Labor Code sections 226.7 and 512 in conjunction with Industrial Welfare Commission (“IWC”) Wage Order No. 5 (California Code of Regulations, tit. 8, sec. 11050) require Defendants to authorize and permit meal and rest breaks to their employees.  California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes.  “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.”  Brinker Rest. Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, 1035.  In order for an employee to be relieved of all duty, the employee must be free to leave the workplace premises.  Id. at 1036.  An employer cannot “impede or discourage [employees] from [taking breaks].”  Id. at 1040.

Section 226.7 and IWC Wage Order No. 5 also require employers to authorize and permit employees to take 10-minute rest breaks for each four hours of work, or major fraction thereof, and to pay employees their full wages during their rest breaks.  A “major fraction of four hours” means greater than two hours.  Brinker, supra, 53 Cal.4th at 1029.  Unless the employee is relieved of all duty during the 30-minute meal break and 10-minute rest break, the employee is considered “on duty” and the meal or rest break is counted as time worked under the applicable wage orders.

Labor Code sections 226.7 and 512 in conjunction with Industrial Welfare Commission (“IWC”) Wage Order No. 5 (California Code of Regulations, tit. 8, sec. 11050) require Defendants to authorize and permit meal and rest breaks to their employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes. “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, 1035. In order for an employee to be relieved of all duty, the employee must be free to leave the workplace premises. Id. at 1036. An employer cannot “impede or discourage [employees] from [taking breaks].” Id. at 1040.

Section 226.7 and IWC Wage Order No. 5 also require employers to authorize and permit employees to take 10-minute rest breaks for each four hours of work, or major fraction thereof, and to pay employees their full wages during their rest breaks. A “major fraction of four hours” means greater than two hours. Brinker, supra, 53 Cal.4th at 1029. Unless the employee is relieved of all duty during the 30-minute meal break and 10-minute rest break, the employee is considered “on duty” and the meal or rest break is counted as time worked under the applicable wage orders.

California Labor Code section 510 requires employers to pay overtime compensation for hours worked over 8 per day and 40 per week. An employer may avoid paying overtime for hours worked over 8 per day by adopting a valid Alternative Workweek Schedule. The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 4 at California Code of Regulations, title 8, § 11040, subd. 3(B). Among other things, the law requires an employer to hold a secret ballot election regarding the AWS amongst its employees and to file the results of the election with the State.

Employees must be relieved of all duty during their meal and rest breaks. Brinker, 53 Cal.4th at 1035–1036; Faulkinbury v. Boyd & Associates (2013) 216 Cal.App.4th 220, 236. During breaks, an employee “must be free to attend to any personal business he or she may choose.” Brinker, 53 Cal.4th at 1036. An employee is working and “on duty” when he is “subject to the control of an employer,” “including all the time the employee is suffered or permitted to work, whether or not required to do so.” Wage Order No. 9 § 2(H). Time spent by an employee waiting on standby for the benefit of the employer is considered to be on duty. Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.