CACI No. 2761. Rest Break Violations - Essential Factual Elements (Lab. Code, § 226.7)

Judicial Council of California Civil Jury Instructions (2023 edition)

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2761.Rest Break Violations - Essential Factual Elements (Lab.
Code, § 226.7)
To establish a rest break violation, [name of plaintiff] must prove both of
the following:
1. That [name of plaintiff] worked for [name of defendant] on one or
more workdays for at least three and one-half hours; and
2. That [name of defendant] did not authorize and permit [name of
plaintiff] to take one or more 10-minute rest breaks to which
[name of plaintiff] was entitled.
New December 2022
Directions for Use
Element 1 states the minimum shift length for a rest break. Depending on the length
of the shift, multiple rest breaks could be at issue. Element 1 can be modified to
cover longer shifts and multiple rest breaks.
The jury must also decide how much pay is owed for any rest break violations. (See
CACI No. 2762, Rest Break Violations - Pay Owed.)
Sources and Authority
Right of Action for Missed Meal and Rest and Recovery Periods. Labor Code
section 226.7.
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.)
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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