Employee Rights Attorney

Mission Viejo, California

Q: I am working as an employee as opposed to an independent contractor because I want my employer to manage my taxes each paycheck. In my verbal employment agreement, I do not receive benefits. Does my employer have to provide two 15-minute paid breaks during an eight-hour shift, as I am an employee? For example, if I work from 8:00 a.m. to 5:00 p.m. with one hour off (30-minute unpaid lunch, 30 minutes of paid break time) should I be paid for 8½ hours?

A: Any holiday or vacation pay is awarded solely at the discretion of the employer; it is not mandated by law. California employers are required to provide two 10-minute breaks daily, said employment law attorney Don D. Sessions of Mission Viejo. And those must be paid breaks.

“If you’re a non-exempt employee, you should have one 10-minute break in the morning and one in the afternoon, with a lunch break in the middle of the day,” Sessions said. “It’s not appropriate to lump the two breaks together and attach them to the lunch period.

“The spirit of the law is to give breaks in those long four-hour stretches of time, morning and afternoon. That makes sense for employer and employee, because the employee gets the necessary rest to be productive.”

The employee might request that all the time be lumped together, as you suggest, but the employer is not supposed to allow that kind of work schedule.

“From the employer’s point of view, you never know if the employee could come back and say they didn’t request such an agreement,” Sessions said.

“As a practical matter, many employers pressure workers not to take breaks. If you want to stop this practice, the preferable way to handle it is with a diplomatic note stating your knowledge of the law. Keep a copy, with your signature, as proof that you complained. You have whistleblower protection, but they might find another reason to fire you.”

Finally, if you work 8:00 – 5:00, with a 30-minute lunch, you should be paid for 8½ hours of work.