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Can my employer make me use my rest break or meal break when I have to go the toilet (bathroom, rest room)?

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Bathroom breaks, toilet breaks, restroom breaks and rest breaks - California law

It is illegal under California law for your employer to make you use the restroom during your rest breaks and meal breaks. If the company you work for (or used to work for) does this - you may be entitled to unpaid wages. 

In this article I cover the following topics:

Can the company make me use my rest break when I need to use the toilet, bathroom, restroom?
 
Rest break timing under California law
 
Not to suggest that you can't use the toilet on your rest break/ meal break
 
California rest break law - the employer's obligations (called "duties")
 
No duties/ responsibilities during rest breaks - under California law
 
You must have no duties/ responsibilities during rest breaks - under California law
 
You can’t waive what you didn’t get (you don't have to have used the restroom during your rest break in order for there to be a violation)
 
Using the toilet is not resting (in a suitable resting facility)

What if the company suggests that workers should wait for their rest breaks or meal breaks in order to use the toilet?
 
Rest breaks and paycheck stub violations
 
Rest breaks and waiting time penalties
 
A Case study - a California employer only allows employees to use the toilet during rest breaks
 

Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?

rest breaks and toilet breaks & bathroom breaks - are you entitled to money?
A No B.S. straight-shooter lawyer

Believe it or not, Bill is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk

Can the company make me use my rest break when I need to use the toilet, bathroom, restroom?

No, under California law rest breaks are separate from toilet breaks, bathroom breaks and/or when you must use the restroom.
 
If your employer requires that workers can only use the toilet during rest breaks and meal breaks, this is a violation of California law. Under California law, you are entitled to an hour’s pay every time you don’t get a rest break.
 
Thus, you are probably entitled to an hour’s pay for every rest break. This is regardless of whether you actually used the toilet during your rest break or now.
 
In addition, this also results in pay stub violations and waiting time penalties. These are also PAGA violations and you are entitled to PAGA penalties. 
 

Not to suggest that you can't use the toilet on your rest break/ meal break

 
This is not to suggest that you can't use the restroom/ toilet during your rest breaks and/or meal breaks. Because obviously you can. 
 
What is illegal is when your employer says that the only time you can use the restroom/ toilet is during your rest breaks and/or meal breaks. Or it is illegal if your employer discourages you from using the toilet unless you're on your rest break and/or meal break. 
 

Rest break timing under California law

Under California law, you have a right to a 10 minute rest break as follows:
 
3.5 hours     1st rest break
   6 hours     2nd rest break
 10 hours     3rd rest break
 12 hours     4th rest break
 

California rest break law - the employer's obligations (called "duties")

The employer satisfies its obligation to provide rest breaks if it:
 
 
 1.  Relieves you of all duty,
 2.  Relinquishes control over your activities and
 3.  Permits you a reasonable opportunity to take an uninterrupted 10 minute break, and
 4.  Does not impede or discourage you from doing so.  Or provide an incentive for you to forego your rest breaks. 
 Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 265, (2016).
 
I know the Augustus case well, because I wrote the winning Supreme Court brief in the Augustus case.
 

You must have no duties/ responsibilities during rest breaks - under California law

During your rest break you have to be allowed to rest. Your employer can’t make you have any duties and/or responsibilities during your rest break.
 
This includes making you use your rest break to use the toilet, bathroom and/or restroom.
 
If your employer makes employees use your rest break to use the toilet/ bathroom and/or restroom, then it is a violation of California law.
 
You - and the other employees of the company - are owed an hour’s pay for every rest break. This is in violation of the California Wage Orders and California Labor Code Section 226.7.
 

You can’t waive what you didn’t get (you don't have to have used the restroom during your rest break in order for there to be a violation)

You don’t need to have actually have used the bathroom, toilet and/or restroom during your rest break in order to be owed an hour’s pay. Under California law, you can’t waive what you didn’t get.
 
As the California Supreme Court ruled in the Brinker case:
 
An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven hour shift when two are required it has violated the wage order and is liable. No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.
Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1033 (2012).
 
I know the Brinker Supreme Court case very well, because I represented the workers in the Brinker case.
 

Using the toilet is not resting (in a suitable resting facility)

The long and short of it is that under all of the Wage Orders you have to be allowed to a net 10 minutes rest during your rest break. Using the toilet is not “resting.”
 
Most of the Wage Orders dictate that you must be allowed to rest at a “suitable resting facility.” But, even if you work in an industry that doesn’t mandate that the employer provide a suitable resting facility (for example agricultural workers or construction workers that work outside); you still have to be provided access to shade.
 

What if the company suggests that workers should wait for their rest breaks or meal breaks in order to use the toilet?

 
This is illegal under California law. Your employer can't "suggest" that workers wait until their meal breaks or rest breaks in order to go the the bathroom. 


Rest breaks and paycheck stub violations

Under the Wackenhut case, you may pursue pay check stub violations for the failure of the employer to provide 226.7 premium wages on your pay stub.
Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926, 960 (2016).

 
The key part is the Wackenhut court’s statement that missed meal breaks and rest breaks gave rise to premium wages.  Thus, supporting that a failure to place all wages earned on a wage statement gives rise to a pay stub violation under California Labor Code Section 226.
 

Rest breaks and waiting time penalties

If your employer discharges you, the wages earned and unpaid at the time of discharge are due and payable immediately. California Labor Code Section 201(a). If you give more than 72 hour's notice, then you must also be paid all the wages you're owed immediately.  If you quit and don't give notice, then you're owed all of your wages within 72 hours. 
 
If an employer willfully fails to pay any wages of an employee who is discharged, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.  California Labor Code Section 203(a).
 
Please note Section 203(a) refers to “any wages.”  Since failing to provide  meal periods and rest periods give rise to “premium wages” - the these premium wages also give rise to waiting time penalties. Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926, 960 (2016).


A Case study - a California employer only allows employees to use the toilet during rest breaks

Dan works at a factory in California.  The factory has a policy where workers have to use their rest breaks and/or meal breaks in order to use the toilet.  It is more than frowned upon to go to the restroom unless you are on your scheduled break. The supervisors are all over you if you leave your workstation in order to use the bathroom. Someone always has to be “manning” the factory line.
 
Dan was paid $16.75 an hour. He worked at the factory for one year.  The company paid the employees weekly. 
 
California Wage Order 1 (1-2001) applies to the manufacturing industry. Like most all  of the wage orders, Wage Order 1 requires employees to provide a 1 “net 10 minutes” rest period at a suitable resting facility.  Wage Order 1-2001 Section 12(A) and 13(B).
 
Wage Order 1 requires the following:
 
Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. Wage Order 1 Section 13(B).
 
The fact that the suitable resting facilities are separate from the toilet rooms is evidence that the IWC intended that workers are not to have to use toilet rooms during their rest breaks.
 
This is not to suggest that employers can’t require employees to use toilet facilities for reasonable amounts of time. However, employers can’t force employees to only use toilets during rest breaks and meal breaks.

Wages owed to Dan

Thus, based upon the failure to provide rest breaks to Dan (and the other factory workers), Dan is owed the following wages: 
 
Because the company required employees to use the toilet during rest breaks, employees were not provided a legal rest break under California law. You didn't have to actually use the toilet during a rest break in order for this to be a violation. 
 
Dan is entitled to an hour's pay for each rest break. California Labor Code Section 226.7Conservatively, we will calculate one missed rest break a day.
 
$16.75 time 260 days = $4,355 
 
In addition, it is a pay stub violation under California Labor Code Section 226 not to put all wages on the pay stub.  This is capped at $4,000. 
 
Dan is owed waiting time penalties. 
 
$16.75 x 8 hours =  $134 a day
 
 $134 x 30 days =  $4,020
 
Thus, the total wages and penalties are as follows: 
 
$   4,355      Labor Code 226.7 rest break premium pay
$   4,000      pay stub violations - Labor Code 226 
$   4,020      waiting time penalties - Labor Code 203
$ 12,375      total wages and penalties
 
 
Getting my settlement check for my unpaid wages case!!
 
Getting my settlement check for my unpaid wages case!!


Questions or if you need help right now?


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This article isn't legal advice
 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
 
Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different. In other words, your mileage may vary.
 
 
William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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