California Labor Code § 226.7 – Working During Meal, Rest and Recovery Periods

California Labor Code § 226.7 mandates employers to pay their non-exempt employees an extra hour of wages at their regular rate of pay for each day they are made to work during their legally-required rest periods, meal breaks, or recovery periods.

The full text of the statute reads:

226.7. (a) As used in this section, “recovery period” means a cooldown period afforded an employee to prevent heat illness.

(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.

(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.

(d) A rest or recovery period mandated pursuant to a state law, including, but not limited to, an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, shall be counted as hours worked, for which there shall be no deduction from wages. This subdivision is declaratory of existing law.

(e) This section shall not apply to an employee who is exempt from meal or rest or recovery period requirements pursuant to other state laws, including, but not limited to, a statute or regulation, standard, or order of the Industrial Welfare Commission.

(f)(1) An employee employed in the security services industry as a security officer who is registered pursuant to the Private Security Services Act (Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code) and who is employed by a private patrol operator registered pursuant to that chapter, may be required to remain on the premises during rest periods and to remain on call, and carry and monitor a communication device during rest periods. If a security officer’s rest period is interrupted, the security officer shall be permitted to restart the rest period anew as soon as practicable. The security officer’s employer satisfies that rest period obligation if the security officer is then able to take an uninterrupted rest period. If on any workday a security officer is not permitted to take an uninterrupted rest period of at least 10 minutes for every four hours worked or major fraction thereof, then the security officer shall be paid one additional hour of pay at the employee’s regular base hourly rate of compensation.
(2) For purposes of this subdivision, the term “interrupted” means any time a security officer is called upon to return to performing the active duties of the security officer’s post prior to completing the rest period, and does not include simply being on the premises, remaining on call and alert, monitoring a radio or other communication device, or all of these actions.
(3) This subdivision only applies to an employee specified in paragraph (1) if both of the following conditions are satisfied:
(A) The employee is covered by a valid collective bargaining agreement.
(B) The valid collective bargaining agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for rest periods for those employees, final and binding arbitration of disputes concerning application of its rest period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than one dollar more than the state minimum wage rate.
(4) This subdivision does not apply to existing cases filed before January 1, 2021.
(5) In enacting the legislation adding this subdivision, it is the intent of the Legislature to abrogate, for the security services industry only, the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, to the extent that decision is in conflict with this subdivision.

(g) This section shall remain in effect only until January 1, 2027, and as of that date is repealed.

Legal Analysis

California Labor Code 226.7 LC prohibits employers from making non-exempt employees work during

1. meal breaks,
2. rest breaks, and
3. recovery periods (a cooldown period for employees to avoid heat illness).

For each day that employees are deprived of their legally-required breaks, their employers must pay them for an additional hour of work at their regular rate of pay.

Example: As a non-exempt employee, Annie is entitled to a 10-minute rest period for every four hours she works. On a particularly busy day, Annie agrees when her boss asks her to work through her rest period. However, her boss must then give her an extra hour’s wages.

Note that security officers employed by private patrol operators – and not covered by a collective bargaining agreement – can be lawfully required to

• remain on work premises,
• remain on call, and
• carry and monitor communications devices

during rest periods. If their rest period gets interrupted, they must be permitted to restart the rest period as soon as it is practicable. If security officers cannot take a 10-minute uninterrupted rest period for every four hours they work, the employer must pay them for an extra hour of work.¹

Frequently-asked-questions

What breaks am I entitled to in California?

If you are a non-exempt employee in California, you must be given:

• an unpaid 30-minute meal break if you work more than five hours in a day and then another unpaid 30-minute meal break if you work more than 10 hours in a day; and
• an unpaid 10-minute rest period for every four hours worked in a day.²

If I choose to work during my break, can I get extra pay under Labor Code 226.7?

In general, your employer does not have to pay you extra if you voluntarily choose to work through a meal or rest period. Though if your employer encouraged you to work through your meal and break period, then you may be entitled to extra pay.³

What if my employer does not pay me for working through my meal or rest break?

You can file a labor law violation complaint as well as a wage claim with the California Labor Commissioner. You can also file a lawsuit, though going through the Commissioner is usually quicker and easier.

If you are not the only employee being made to work through your breaks, you can join together and possibly bring a wage and hour class action lawsuit.

 

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Legal References