CACI No. 2760. Rest Break Violations - Introduction (Lab. Code, § 226.7)

Judicial Council of California Civil Jury Instructions (2024 edition)

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2760.Rest Break Violations - Introduction (Lab. Code, § 226.7)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] pay because [name of defendant] did not
authorize and permit one or more paid rest breaks.
An employee is entitled to a paid 10-minute rest break during every
four-hour work period[. / , or major fraction of four hours.] [However,
an employee is not entitled to a rest break if the total daily work time is
less than three and one-half hours.] This means that over the course of a
workday [name of plaintiff] was due [specify which rest breaks are at issue,
e.g., a paid 10-minute rest break after working longer than three and one-
half hours and a second paid 10-minute rest break after working more than
six hours but no more than ten hours]. [Rest breaks must occur, if
practical under the circumstances, in the middle of each four-hour work
period. [Specify any additional timing requirement(s) of the rest breaks at
issue if delay is at issue.]]
An employer must relieve the employee of all work duties and relinquish
control over how the employee spends time during each 10-minute rest
break. This includes not requiring employees to remain on call or on-site
during rest breaks. An employer, however, does not have an obligation to
keep records of employee rest breaks or to ensure that an employee
takes each rest break.
“Workday” means any consecutive 24-hour period beginning at the same
time each calendar day.
[Rest breaks, which are paid, and meal breaks, which are unpaid, have
different requirements. You should consider claims for rest break
violations separately from claims for meal break violations. A rest break
cannot be combined with a meal break or with another 10-minute rest
break. For example, providing an unpaid meal break does not satisfy the
employer’s obligation to authorize and permit a paid 10-minute rest
New December 2022
Directions for Use
Give this instruction with CACI No. 2761, Rest Break Violations-Essential Factual
This instruction is intended for use by nonexempt employees subject to section
12(C) of Industrial Welfare Commission wage orders 1-2001 through 11-2001, 13-
2001 through 15-2001, and 17-2001. Other wage orders contain exceptions to the
common rule. Different rest period rules apply to certain employees of emergency
ambulance providers; do not give this instruction in a case involving those
employees. (See Lab. Code, §§ 880-890, added by initiative, Gen. Elec. (Nov. 6,
2018), commonly known as Prop. 11.) Different on-call rest period rules apply to
security officers employed in the security services industry. (See Lab. Code,
§ 226.7(f).) This instruction should be modified in a case involving security officers.
Specify in the second paragraph which breaks the plaintiff claims to have missed if
there is uniformity in that allegation. Rest break claims can also involve
noncompliant timing. If so, specify the noncompliant timing issue in the second
paragraph. Rest breaks are based on “the total hours worked daily at the rate of ten
(10) minutes net rest time per four (4) hours or major fraction thereof.” (See, e.g.,
Cal. Code Regs., tit. 8, § 11010, subd. 12(A).) The wage orders’ language means
that “[e]mployees are entitled to 10 minutes’ rest for shifts from three and one-half
to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours,
30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029 [139 Cal.Rptr.3d
315, 273 P.3d 513].) Include the bracketed phrase “or major fraction of four hours”
in the second paragraph only if it will assist the jury in understanding the
scheduling of rest breaks. “Though not defined in the wage order, a ‘major fraction’
long has been understood - legally, mathematically, and linguistically - to mean a
fraction greater than one-half.” (Brinker Restaurant Corp., supra, 53 Cal.4th at p.
The definition of “workday” may be omitted if it is included in another instruction.
Give the optional final paragraph only if both rest breaks and meal breaks are at
issue in the case.
Sources and Authority
Right of Action for Missed Meal and Rest and Recovery Periods. Labor Code
section 226.7.
“Workday” Defined. Labor Code section 500.
Rest Periods. Cal. Code Regs., tit. 8, § 11010 et seq., subd. 12.
“An employer is required to authorize and permit the amount of rest break time
called for under the wage order for its industry. If it does not - if, for example, it
adopts a uniform policy authorizing and permitting only one rest break for
employees working a seven-hour shift when two are required - it has violated
the wage order and is liable. No issue of waiver ever arises for a rest break that
was required by law but never authorized; if a break is not authorized, an
employee has no opportunity to decline to take it.” (Brinker Restaurant Corp.,
supra, 53 Cal. 4th at p. 1033.)
“What we conclude is that state law prohibits on-duty and on-call rest periods.
During required rest periods, employers must relieve their employees of all
duties and relinquish any control over how employees spend their break time.”
(Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260 [211
Cal.Rptr.3d 634, 385 P.3d 823], abrogated in part by Lab. Code, § 226.7(f)(5).)
“[O]ne 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.” (Augustus, supra, 2 Cal.5th at
p. 269, abrogated in part by Lab. Code, § 226.7(f)(5).)
“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.” (Augustus, supra, 2 Cal.5th at p. 270.)
“Although section 12(A) of Wage Order 1-2001 does not describe the
considerations relevant to such a justification, we conclude that a departure from
the preferred schedule is permissible only when the departure (1) will not unduly
affect employee welfare and (2) is tailored to alleviate a material burden that
would be imposed on the employer by implementing the preferred schedule.”
(Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1040 [201 Cal.Rptr.3d
“[W]e hold that the Court of Appeal erred in construing section 226.7 as a
penalty and applying a one-year statute of limitations. The statute’s plain
language, the administrative and legislative history, and the compensatory
purpose of the remedy compel the conclusion that the ‘additional hour of pay’ is
a premium wage intended to compensate employees, not a penalty.” (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [56 Cal.Rptr.3d
880, 155 P.3d 284], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 390
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)

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