The California Court of Appeals recently held that California employers may not combine required 10 minute rest periods into one larger rest period absent justifiable circumstances, further clarifying the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, which had held that employers were not always required to provide a rest period before a meal break (suggesting that they may in fact be combined).

The California Legislature originally authorized the Industrial Welfare Commission (IWC) to issue wage orders governing wages, hours, and working conditions for workers in various industries and occupations. Although the IWC has since been defunded, the wage orders still generally hold the force of law in California. Under those wage orders, employers must provide all employees with a 10 minute paid rest period for every four hours, or major fraction thereof, worked. If an employer fails to provide a required rest period, the employer must pay a wage penalty equivalent to one hour of pay at the employee’s regular rate of pay for each workday that the rest period was not provided.

The wage orders do not, however, specify whether an employer may satisfy its obligations under the law by providing one combined rest period rather than separate 10 minute periods. The orders only specify that they should fall in the middle of work periods “insofar as practicable.” In Brinker, the California Supreme Court examined the timing of meal and rest breaks under IWC Wage Order No. 5-2001. There, several restaurant employees sought class certification of their claims for inadequate and mistimed meal and rest breaks. Plaintiffs had claimed that their employer was required to provide a rest period before any meal break. The California Supreme Court rejected this contention, noting that this could lead to an absurd result for an employee who works only six hours and is entitled to only one meal period and one rest period. As explained by the court, “neither text nor logic dictates . . . the conclusion that a rest break at the two-hour mark and a meal break at the four-hour mark of such a shift is lawful, while the reverse, a meal break at the two-hour mark and a rest break at the four-hour mark, is per se illegal.” 139 Cal. Rptr. 3d 315, 336 (Cal. 2012). The court therefore refused to hold that a rest period must be provided before a meal period and further stated that, as a general matter, one rest break should fall on either side of the meal break, absent certain other factors that make such scheduling impracticable.

The court did not, however, explain what factors actually make scheduling “impracticable,” leading to the dispute in Rodriguez v. E.M.E., Inc. There, a former employee filed a class action alleging that E.M.E. failed to provide its (painter) employees with separate 10 minute rest periods, as required by law. E.M.E. argued that no statute or provision of any wage order barred employers from providing a single combined rest period. In addition, E.M.E. asserted that practical considerations rendered such a schedule infeasible. According to employee testimony, the company had been providing the employees with a combined 20 minute rest break for more than 30 years. The combined rest period was actually preferred by employees because it provided them with sufficient time to cook and eat—in effect, an extra meal period. In addition, the combined rest period resulted in fewer work slowdowns and higher productivity. Whenever the painting line was shut down, painters were required to clean out each paint gun and paint pot and shut down certain equipment. Then, upon returning from the break, the painters had to refill paint pots and paint guns and turn the equipment back on. These efforts took approximately 10 minutes at shutdown and another 10 minutes at start-up. Thus, an additional, separate meal period meant additional shutdown and start-up time, impairing productivity.

The lower court agreed with E.M.E.’s rationale and granted E.M.E. summary judgment. However, the Court of Appeals reversed. The court explained that rest periods must be provided “in the middle of work periods occurring before and after the 30-minute meal break ‘insofar as practicable,’” and ‘insofar as practicable’ means that employers must implement the specified rest break schedule “absent an adequate justification why such schedule is not capable of being put into practice or is not feasible as a practical schedule.” In the court’s view, “a departure from the preferred schedule that is merely advantageous to the employer cannot satisfy th[is] requirement.” Rather, “the departure must be predicated on facts demonstrating that the preferred schedule would impose a material burden on the employer and that the departure is necessary to alleviate such burden.” The court could not conclude that such was the case here, where the plaintiff submitted contrary testimony, indicating that the burden on the employer may not have been to the extent proffered by the company.

This case indicates that employers should use great caution whenever deviating from the general rule that rest periods must be provided in separate 10 minute increments on both sides of a meal period (where applicable). Employers must be prepared to affirmatively and definitively demonstrate a material burden on their operations. This is true even if employees prefer, or even requested, the change to scheduling, as was the case in Rodriguez.