With the onset of warmer weather this spring and summer, now is a good time for California employers to review their recovery break policies.
California employers are subject to heat illness prevention regulations covering all outdoor places of employment. These standards include a number of detailed requirements for providing water, shade, cool-down recovery breaks, and training for all employees and supervisors.
One of the regulatory provisions applicable to all California employers that require employees to work outdoors is that workers must "be allowed and encouraged to take a preventative cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating."
These recovery breaks allow employees to cool down on hot days and thus are an additional break requirement to the 10-minute rest breaks provided by the California Industrial Welfare Commission's wage orders.
Section 226.7 of the California Labor Code defines these cool-down breaks as recovery periods, and provides that an employer that fails to provide an employee a recovery break must "pay the employee one additional hour of pay." Plaintiffs' counsel in California have also argued that Private Attorneys General Act (PAGA) civil penalties are due as well, but if the statutory premium has been paid, it is questionable whether a court would find that employees are still aggrieved under PAGA.
The Supreme Court of California is considering two cases—Naranjo v. Spectrum Security Services, Inc. and Ferra v. Loews Hollywood Hotel, LLC—where plaintiffs' counsel argue that Section 226.7 penalties should be construed as wages that must be paid at the regular rate of pay calculation used for overtime purposes, instead of at the base rate of pay.
They also argue that if the penalty remains unpaid, the employer is also subject to additional penalties for unpaid wages, including violations of Sections 203 and 226 of the Labor Code, 10 percent interest, and attorneys' fees.
Accordingly, California employers may want to take steps to ensure they have compliant recovery break policies this summer.
Recovery Break Requirements
The regulations provide the following core requirements for California employers that require employees to work outdoors.
Access to Shade
When the temperature exceeds 80 degrees Fahrenheit, the employer must "maintain one or more areas with shade at all times while employees are present that are either open to the air or provided with ventilation or cooling."
In addition, "[t]he amount of shade present [must] be at least enough to accommodate the number of employees on recovery or rest periods, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other." The shade must be located as close as practicable to the work area.
Recovery Breaks in the Shade
Employees must be allowed and encouraged to take a recovery break in the shade for a period of "no ... less than 5 minutes" at a time "when they feel the need to do so to protect themselves from overheating." Employees must have access to recovery breaks in the shade "at all times."
When an employee takes a recovery break, the employee must "be monitored and asked if he or she is experiencing symptoms of heat illness"; must "be encouraged to remain in the shade"; and must "not be ordered back to work until any signs or symptoms of heat illness have abated, but in no event [after] less than 5 minutes in addition to the time needed to access the shade."
If the "employee exhibits signs or reports symptoms of heat illness" while on a recovery break, "the employer [must] provide appropriate first aid or emergency response."
Additional requirements apply on high-heat days "when the temperature equals or exceeds 95 degrees Fahrenheit."
Employers must also train supervisory and nonsupervisory employees before they are required to work on hot days. The training must cover the employer's procedures for providing water, shade, recovery breaks, and access to first aid, as well as the employees' freedom to exercise their rights under the regulations without retaliation.
How Recovery Breaks Are Different
The recovery break requirements are significantly different from meal and rest break requirements. For example, the timing and number of required meal and rest breaks are set in the law, but no timing or numeric requirements exist for recovery breaks.
Employers must provide recovery breaks to employees each time they feel the need to take a break in the shade to protect themselves from overheating. While meal and rest breaks are for 30 and 10 minutes, respectively, recovery breaks must be no less than 5 minutes, meaning that a recovery break can be much longer than 5 minutes if an employee feels the need for more time to cool down.
With meal and rest breaks, employers must relinquish their employees of all duty, but they do not have to police employees by requiring them to take their breaks or monitoring them while on their breaks.
However, with recovery breaks, employers have an affirmative duty to encourage the breaks, provide suitable shade for the breaks, monitor and ask employees whether they are experiencing symptoms of heat illness while on break, encourage employees to remain in the shade if symptoms are reported or observed, and provide first aid or an emergency response if necessary.
Managing Class Action Risks
Class action liability in the break context may arise from evidence that an employer had a uniform policy and systematically prevented employees from getting timely and full opportunities to take breaks. (With recovery breaks, such common evidence will often not be available, as individualized inquiries are needed to determine whether each individual employee on any specific shift felt the need to take a recovery break, and the length of the break that each employee felt was necessary to avoid heat illness.)
As such, the strategy of plaintiffs' counsel is primarily to scrutinize the company's recovery break policies and procedures, with the aim of showing that they are structurally inadequate to provide compliant recovery breaks.
Employers may wish to consider taking the following proactive steps to manage recovery break liability:
- Adopting a heat illness prevention policy. Consider adopting a detailed heat illness prevention policy that addresses all of the requirements of the heat illness prevention regulations, not just the recovery break requirements, to show that the company is committed to employee safety, including the provision of recovery breaks. Employers may wish to include details on access to water, water replenishment, access to shade, recovery break requirements, training for employees, training for supervisors, and emergency response procedures.
- Following best practices. Consider incorporating the recovery break best practicesprovided by the California Department of Industrial Relations into the policy. These include training employees and supervisors on emergency response procedures, providing shaded recovery break locations near sufficient supplies of drinking water, training supervisors or other designated persons to closely monitor employees on recovery breaks, ensuring that employees with symptoms of heat illness are not left alone or sent home without medical authorization, and ensuring that employees frequently drink sufficient amounts of water.
- Implementing training. Consider training supervisors and employees on the policy and requiring all attendees to sign an acknowledgment form that they have received the training, that they understand the policy, that they know how to request recovery breaks, that they know to immediately report any concerns about not receiving recovery breaks, and that they know of the company's strict policy prohibiting retaliation against any employee who reports such concerns.
- Using and reviewing written documentation. During the warmer months of the year, consider providing employees the opportunity to attest in writing—after each shift, workweek, or pay period—that they have received all the recovery breaks that they felt they needed.
In addition, consider establishing a practice of reviewing the attestations, and, for situations where employees represent that they did not get opportunities to take recovery breaks that they requested, providing penalty payments to those employees. Consider designating a gatekeeper to audit the attestations for any trends in reports from employees that they did not get recovery breaks, and to lead efforts to address and resolve the issues.
California employers that follow these compliant and proactive strategies may be able to demonstrate that they have taken steps to ensure the safety of their employees, and be able to manage class action and Private Attorneys General Act (PAGA) risks this summer.
A version of this article was previously published in Law360.
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