Rest Break Premium

What Is a Rest Break Premium?

A rest break premium (also called "rest period premium pay" or "rest penalty") is one additional hour of compensation that California employers must pay to non-exempt employees when they fail to authorize and permit a compliant rest break. Like meal break premiums, rest break premiums are calculated at the employee's regular rate of pay and are legally classified as wages.

Rest break premium requirements are codified in California Labor Code Section 226.7. Following the California Supreme Court's decision in Naranjo v. Spectrum Security Services (2022), these premiums are definitively classified as wages, with all the associated legal implications.

California Requirements

When Rest Break Premiums Are Owed

Employers must pay one hour of rest break premium when they fail to provide compliant rest breaks:

Violation Type	Description	Premium Owed
No rest break provided	Employee entitled to rest break but none offered	1 hour
Short rest break	Rest break was less than 10 minutes	1 hour
Interrupted rest break	Employee called back to work during break	1 hour
Required to work	Employee required to perform duties during break	1 hour
Required to stay at workstation	Employee not permitted to leave immediate work area	1 hour
On-call during break	Employee required to remain available or carry devices	1 hour
Impractical to take	Workload or staffing made breaks realistically impossible	1 hour

Rest Break Entitlement Review

Understanding when rest breaks are required is essential for determining when premiums apply:

Total Work Hours	Rest Breaks Required
Less than 3.5 hours	None
3.5 to 6 hours	1 break
More than 6 to 10 hours	2 breaks
More than 10 to 14 hours	3 breaks
More than 14 hours	4 breaks

One Premium Per Workday

Only one hour of rest break premium is owed per workday, regardless of how many rest break violations occur. This is similar to the meal break premium rule:

• Employee misses 1 rest break = 1 hour premium
• Employee misses 2 rest breaks = 1 hour premium (not 2)
• Employee misses all 3 required rest breaks = 1 hour premium (not 3)

However, rest break premium is separate from meal break premium:

Violations	Total Premium
1 missed meal break only	1 hour
1 missed rest break only	1 hour
1 missed meal AND 1 missed rest	2 hours
Multiple missed meals AND multiple missed rests	2 hours (maximum)

Calculating the Rest Break Premium

The Regular Rate of Pay

Rest break premiums must be calculated using the regular rate of pay, which includes more than just the base hourly wage:

Included in Regular Rate:

• Base hourly wage
• Non-discretionary bonuses (production bonuses, performance bonuses, etc.)
• Shift differentials
• Piece-rate earnings
• Commission payments
• Non-cash compensation (some forms)

Excluded from Regular Rate:

• Discretionary bonuses
• Gifts
• Vacation pay
• Holiday pay
• Expense reimbursements
• Employer contributions to retirement plans

Calculation Examples

Example 1: Simple Hourly Rate

Facts:

• Employee: Sam
• Hourly rate: $17.50
• Violation: Missed one rest break on Monday

Calculation:

• Regular rate = $17.50
• Rest break premium = 1 hour x $17.50 = $17.50

Example 2: Hourly Plus Shift Differential

Facts:

• Employee: Riley
• Base rate: $19.00/hour
• Night shift differential: $2.00/hour
• Violation: Missed rest break during night shift

Calculation:

• Regular rate: $19.00 + $2.00 = $21.00
• Rest break premium = 1 hour x $21.00 = $21.00

Example 3: Production Bonus

Facts:

• Employee: Dakota
• Hourly rate: $18.00
• Production bonus this week: $150 (for 40 hours worked)
• Violation: Missed rest break on Wednesday

Calculation:

• Base hourly rate: $18.00
• Bonus per hour: $150 ÷ 40 = $3.75
• Regular rate: $18.00 + $3.75 = $21.75
• Rest break premium = 1 hour x $21.75 = $21.75

Example 4: Multiple Rest Breaks Missed (Same Day)

Facts:

• Employee: Avery
• Hourly rate: $20.00
• Violation: Missed all 3 required rest breaks in a 12-hour shift

Calculation:

• Only one premium is owed per workday
• Rest break premium = 1 hour x $20.00 = $20.00

Example 5: Meal and Rest Violations Same Day

Facts:

• Employee: Jordan
• Hourly rate: $16.50
• Violations: Missed meal break AND missed rest break on Thursday

Calculation:

• Meal break premium: 1 hour x $16.50 = $16.50
• Rest break premium: 1 hour x $16.50 = $16.50
• Total premium: $33.00

Legal Classification as Wages

Implications of Wage Classification

The Naranjo decision confirmed that rest break premiums are wages, which means:

As Wages	Employer Must:
Timely payment	Pay premiums with the regular paycheck
Wage statement itemization	Include on wage statements
Final pay inclusion	Include all owed premiums in termination pay
Waiting time exposure	Unpaid premiums trigger waiting time penalties
Tax treatment	Withhold payroll taxes

Wage Statement Requirements

Rest break premiums must be properly documented on employee pay stubs. The wage statement should:

• Show premium payments separately or in an identifiable manner
• Include the hours and rate used for calculation
• Be provided with each pay period's wages

Failure to properly itemize can result in wage statement penalties under Labor Code Section 226:

• $50 for the first violation
• $100 for subsequent violations
• Up to $4,000 maximum per employee

Rest Breaks Cannot Be Waived

Key Difference from Meal Breaks

Unlike meal breaks, which can sometimes be waived through a valid meal period waiver, rest breaks cannot be waived under any circumstances:

Break Type	Can Be Waived?
First meal break (shift ≤6 hours)	Yes, with mutual consent
Second meal break (shift ≤12 hours)	Yes, with conditions
Rest breaks	Never

Even if an employee says they don't want a rest break, the employer must authorize and permit the break. An employee's refusal to take a break does not eliminate the employer's obligation to provide the opportunity.

What "Authorize and Permit" Means

California courts have interpreted the employer's duty as requiring both:

1. Authorization - Having a policy that allows rest breaks
2. Permission - Actually enabling employees to take breaks in practice

Simply having a rest break policy is not enough. Employers must ensure that:

• Staffing levels allow breaks to be taken
• Workload doesn't make breaks impractical
• Supervisors don't discourage breaks
• Employees are not penalized for taking breaks

Common Compliance Violations

Staffing-Related Violations

Problem: Not scheduling enough employees to cover breaks Result: Employees can't realistically leave their positions Premium: Owed

Problem: High customer volume with no additional coverage Result: Employees feel they can't step away Premium: Likely owed if employer knew or should have known

Supervisor-Related Violations

Problem: Managers discouraging breaks verbally Result: Employees skip breaks to avoid negative perception Premium: Owed

Problem: Rewarding employees who skip breaks Result: Creates pressure to forgo breaks Premium: Owed

Policy-Related Violations

Problem: Combining rest breaks with meal breaks Result: Not providing separate rest break opportunities Premium: Owed

Problem: Requiring employees to remain at workstations Result: Not relieving employees of all duties Premium: Owed

Problem: Requiring employees to carry radios/phones Result: Employees remain on-call during breaks Premium: Owed

Timing-Related Violations

Problem: Only allowing breaks at shift start or end Result: Not providing breaks in the middle of work periods Premium: May be owed depending on circumstances

Problem: Scheduling breaks back-to-back with meal periods Result: Effectively combines breaks Premium: Owed

Recording and Documentation

Tracking Rest Break Compliance

Because rest breaks are typically paid time and don't require clock-outs, tracking can be challenging. Employers should consider:

1. Attestation systems - Daily confirmation that breaks were provided
2. Supervisor logs - Documentation that breaks were authorized
3. Exception reporting - Employees report when breaks were missed
4. Automated scheduling - Systems that flag when breaks should occur

Best Practice: Daily Attestation

Many employers implement a system where employees attest at the end of each shift:

"I confirm that I was authorized and permitted to take all rest breaks to which I was entitled today. If I did not take a rest break, it was by my own choice and not because of any instruction or pressure from my employer."

Attestations should also capture when breaks were NOT taken and why.

Record Retention

Maintain rest break records for at least 4 years:

• Premium payment records
• Attestation records
• Timekeeping data
• Any break-related communications

Penalties Beyond Premium Pay

Waiting Time Penalties

If rest break premiums remain unpaid when employment ends, waiting time penalties may apply:

• Up to 30 days of the employee's daily wages
• Calculated at the daily rate of pay (not just the premium amount)
• Triggered by "willful" failure to pay

PAGA Civil Penalties

Under the Private Attorneys General Act (PAGA):

Violation	Penalty Per Employee Per Pay Period
First violation	$100
Subsequent violations	$200

75% of PAGA penalties go to the state; 25% to employees.

Wage Statement Penalties

Failing to properly report premiums on wage statements:

• $50 first violation, $100 subsequent
• Up to $4,000 per employee maximum
• Separate from the underlying premium owed

Class Action Liability

Rest break violations affecting multiple employees frequently become class action lawsuits, with potential liability including:

• Premiums for all affected employees
• Interest on unpaid wages
• Attorneys' fees
• Court costs

Interaction with Other Breaks

Rest Breaks and Meal Breaks

Rest breaks are separate from and in addition to meal breaks:

• Cannot combine rest and meal breaks
• Each has separate premium pay
• Maximum combined premium: 2 hours per day (1 meal + 1 rest)

Rest Breaks and Recovery Periods

Recovery periods for outdoor workers in high heat are in addition to rest breaks:

• Recovery periods have their own premium requirements
• An employee could be owed rest break premium AND recovery period premium
• These are separate violations with separate premiums

Rest Breaks and Lactation Breaks

Lactation breaks are separate from rest breaks:

• Employees may use rest breaks for lactation if they choose
• Additional lactation time beyond rest breaks is separate
• Employers cannot require employees to use rest breaks for lactation

Best Practices for Employers

Prevention Strategies

1. Schedule proactively - Build rest breaks into work schedules
2. Provide coverage - Ensure someone can cover during breaks
3. Train supervisors - Managers must understand and support break requirements
4. Create break-positive culture - Normalize and encourage breaks

Detection Strategies

1. Regular audits - Review timekeeping and attestation data
2. Supervisor check-ins - Ask managers about break compliance
3. Anonymous feedback - Give employees a way to report issues
4. Trend analysis - Look for patterns indicating systematic problems

Correction Strategies

1. Pay promptly - Include premiums in regular payroll
2. Fix root causes - Address staffing, scheduling, or cultural issues
3. Retrain - Update training for managers and employees
4. Document - Keep records of all corrective actions

Frequently Asked Questions

Can employees voluntarily skip rest breaks?

Employees cannot waive their right to rest breaks. However, if an employer genuinely authorizes and permits breaks and an employee chooses not to take one, the employer may have a defense to premium claims. Employers should document that breaks were offered and investigate patterns of declined breaks.

Do salaried non-exempt employees receive rest break premiums?

Yes. All non-exempt employees are entitled to rest break protections, regardless of whether they are paid hourly or on a salary. For salaried non-exempt employees, the premium is calculated based on their effective hourly rate.

What if an employee takes shorter breaks by choice?

If an employer provides 10-minute break opportunities but an employee consistently takes shorter breaks, the employer should investigate and document. If the employee is choosing short breaks without employer pressure, liability may be limited. However, employers cannot structure work to make full breaks impractical.

How does rest break premium interact with overtime?

Rest break premiums are not counted as hours worked for overtime purposes. However, the regular rate used to calculate premiums may include overtime-eligible compensation. Rest breaks themselves (being paid time) do count toward overtime calculations.

Can rest break premiums be paid as a lump sum later?

No. Premiums should be paid with the regular paycheck for the pay period when the violation occurred. Delaying payment can result in waiting time penalties and other consequences.