Q: In California, what is considered a break at work

A: You are correct - those are not breaks. Your employer has a duty to authorize and permit you to take timely 10 minute off-duty rest breaks. These rest breaks must be truly off-duty to be considered rest breaks. If you are still required to perform job duties, or even to be on call in the event that a car arrives, then it's not an off-duty rest break. An employer can be liable for one-hour's pay for each day an which it did not authorize and permit a paid rest break to an employee. The statute of limitations for this claim is three years, but can be extended to four year when pled properly in court.

I suggest that you contact a knowledgeable employment attorney regarding your your potential claim. You may want to consult Justia to find an attorney to assist you.

Good luck.

Michael Malk

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A: I love Car Wash Cases. This is an industry where the employers are constantly STEALING WAGES from the employees, and employees are usually afraid to go to the Labor Commissioner or Court. I hear exactly what you said all the time- "You were on break while there was no cars coming in." and this is not just on the clock rest breaks but it was meal breaks too. I had one Car Wash that issued a handbook that said employees got 5 minute breaks.

So what is the Law? First, a "break" means that the employer gives up control over the employee. Wait here, in case a car come in, is not giving up control. The Supreme Court clearly said "Waiting time is working time." So while you are standing there waiting for someone to bring in a car and you are required to stand there, you are waiting/working and under the control of the employer because you cannot leave. Oh, BTW- bathroom breaks are not rest breaks, you don't have to wait for a rest break or meal break to use the bathroom, and the time in the bathroom cannot be deducted from your rest/ meal breaks.

Next, a "rest break" is a NET 10 MINUTES with no employer control. So if there is a lunch area, the 10 minutes starts when you reach the lunch area. It should be taken as close to the middle of the 4 hour period as possible, not at the beginning or at the end and tacked onto the meal period- unless YOU want that. The idea is to keep you productive by giving you a break from working. If the employer calls you back to work at 9 minutes and 30 seconds, you were denied a break, and are entitle to one hour premium pay for each day you are denied one or more rest breaks. Only one hour a day no matter how many rest breaks.

You only spoke about rest breaks, but I bet they are messing with your meal break time, and probably requiring you to work off the clock. Need some details. Meal periods are 30 minutes free from employer control, no work duties, and off the clock. You cannot be made to stay at your post eating while waiting for someone to show up, that is not a meal break. One hour premium pay for each meal break denied per day.

Car Washes often have the employees clock in AFTER THEY START WORKING or clock out AND CONTINUE TO WORK, to put the materials away or set up the car wash/ lock it up. This is STEALING WAGES by making you work OFF THE CLOCK. Another thing they do is to have the manager access your computerized time records and put in clock out/clock in for your lunch, or for the beginning/ end of the day. I have seen these records where you would think the workers were bank executives, taking 2 hour lunches during the middle of the day.

How do you win one of these cases? With some records!! They don't have to be perfect, they don't have to be made at the time you were working, you can create them after the fact from memory or by using time sheets you get from your employer. It is very helpful but not absolutely necessary to have records.

One problem I see all the time is that the employer says you get a lunch break, after working 6 hours, and maybe for 20 minutes. This is not a legal lunch break, but many workers say they got a "break", without realizing that the employer will twist this into an admission they got a legal lunch break.

You need to get the names, addresses, phone and email contact of some of your co-workers, and contact an employment attorney. You may have a class action, and it may be worth it to go after the Car Wash. Contact an employment attorney as soon as you can about this.