One of the frequently recurring employee claims against employers is that employers did not provide employees with statutory rest breaks. There are no statutory requirements for proof. Therefore, employers should put into place procedures to mitigate against these types of claims and provide proof that rest breaks were provided.

Employers should start by giving every employee written notice that they are entitled to, and the employer provides, at least 10 full minutes of rest break for every four hours worked (or major fraction thereof); that employees can leave the premises during their rest break, and that they are relieved of all duties during the rest break. Employers should retain written proof that the policy was distributed and have receipt acknowledged in writing by each employee.

Employers should schedule all employee rest breaks. Although this may be an arduous task, if rest breaks are placed on a schedule, and posted, that is proof that the breaks were made available. Employees should not have to ask a manager for permission to leave.

Employers should have a rest premium code on their payroll and should occasionally use it when an employee misses a rest break for work-related reasons. Having and using the code is persuasive evidence that rest breaks are made available.

Employers should also use some form of written attestation by the employee, preferably daily, but at least weekly or per payroll period, whereby the employee acknowledges that all rest breaks were provided, and if not, they let a manager know, so that a Rest Premium could be provided. If not provided the Employer should ensure the Rest Premium is paid (at the regular rate) to the employee.

Employers must train the managers and payroll on these procedures. Frequent managerial errors that can lead to exposure for failing to provide rest breaks can occur where managers ignore posted rest break schedules; tell employees they cannot take breaks despite posted policies, the schedule or training to the contrary; interrupt employees while on break to talk about work; requiring employees to stay on the premises during rest breaks or to check messages; assert unsigned or unpublicized break policies; fail to consistently use an employee attestation process; never use a Rest Premium Code or do not pay missed rest breaks at the regular rate.

If you do not have these policies and procedures in place or are presently subject to employee claims for missed rest breaks, immediately contact your employment counsel to put in place proper policies and procedures, and to attempt to resolve the employee claims without litigation.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.