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California Employment Lawyers > Blog > Employment > Can Your Employer Require You Stay On Site During Your Breaks?

Can Your Employer Require You Stay On Site During Your Breaks?


The Fair Labor Standards Act (FLSA) requires that employers pay you for the hours that you work, and that if your work hours every week exceed 40 hours, that you be paid overtime. Many  times, employers fail to pay overtime, because they miscalculate the number of hours that an employee has worked.

This often happens when employees are on breaks, as they are legally entitled to have, and which don’t count towards the 40 hours maximum. The problem comes when an employee is on a break, but the employer still maintains control over the employee.

Control Over Your Actions

For example, on a break, the employer may require the employee to answer text messages, respond to emails, or handle incoming phone calls. In fact, the employer can’t even require that the employee have a cell phone or other communication device on or with the employee, during the employee’s breaks.

As a general rule, the hours that an employee is on a break must be counted as work hours, and the employee must be paid for those hours, if the employer maintains control over the employee by requiring the employee to do these types of things on the employee’s break. If the employee is tethered to cell phones, or taking instructions or answering calls or text messages during breaks, employee’s break times are actually work times, and the employee can end up exceeding the 40 hour weekly limit without being paid the legally required overtime pay.

Remaining on Site?

But can an employer require that an employee remain on the worksite during a break? This is a gray area.

On the one hand, the employer is not supposed to exert any control over the employee on a break. On the other hand, the employer requiring that an employee remain on site, is not total control; the employee still has some freedom and the employer is not dictating what the employee must do.

Confusion Over the Law

The California Supreme Court recently considered this issue. The court said that with smaller, 10 minute breaks, requiring employees to remain on site is not considered to be in control over an employee; in fact, it is hard to imagine that an employee even could really get anywhere and return back to the office in ten minutes.

But the California labor board has implied otherwise, saying that although practically an employee going off-premises for a 10 minute break may be impractical, the employer still cannot exercise control over the employee during a break, and as such, that employers must “relinquish control over how employees spend their time,” language that would seem to indicate that employees must be allowed to go off their premises, should they desire.

This is still an open question, but the level and extent of control that an employer exercises over employees during breaks can lead to the employee having a fair labor claim for unpaid wages. If your employer says you’re on break, but is still telling you what to do during your break, you may have a cause of action for unpaid wages.

Are you owed wages, or have you not been paid extra wages for overtime work? We can help. Contact the San Jose employment law lawyers at the Costanzo Law Firm today.




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