Q&A: Smoke Breaks for Servers – Navigating Legalities in California

by Sarah Martinez

Once upon a “Corporate Restructuring,” a new GM once told me that I was no longer allowed to take cigarette breaks.

Last I checked, this was America, and I am entitled to certain rights. Being a citizen of California is something that has a lot of perks, and unfortunately, a lot of restrictions. Yes, some towns have banned smoking cigarettes making it illegal to smoke in public places in Pismo, Sam Louis Obispo, along with most state parks and beaches. But can my employer legally prohibit me from smoking on the job? Here are some answers I found.

Q: Are servers in California legally allowed to take smoke breaks? 

A: Yes, servers in California are entitled to take smoke breaks, but the regulations and conditions may vary. California labor laws require employers to provide rest breaks, which can be used for smoke breaks. According to the law, employees are entitled to a paid 10-minute rest break for every 4 hours worked or major fraction thereof. It’s important to note that these breaks are generally not meant to be exclusively for smoking; they are for the employee’s rest and recuperation.

Q: Can employers restrict the number of smoke breaks during a shift? 

A: While employees have the right to take rest breaks, including smoke breaks, employers have the right to manage these breaks reasonably. The law allows employers to reasonably determine when breaks can be taken to ensure the smooth operation of the business. However, employers cannot discourage or inhibit employees from taking their entitled breaks. For example, employers cannot penalize employees for using their rest breaks for smoking or engage in unfair practices related to smoke breaks.

Q: Are smoke breaks paid or unpaid in California? 

A: Rest breaks, including smoke breaks, are generally paid breaks in California. Employees must be compensated for their rest breaks at their regular rate of pay. This means that employees taking smoke breaks should receive their regular wages for the time they spend on these breaks. It’s essential for both employees and employers to be aware of these regulations to maintain fair and legal workplace practices.

Remember, while California law outlines the general guidelines for smoke breaks, the specific policies within individual workplaces may vary. It’s advisable for both employees and employers to familiarize themselves with their rights and responsibilities under California labor laws to ensure a respectful and lawful working environment.

So while Mr. Corporate manager may not encourage my smoking on my 10 minute break, it sounds like he cannot necessarily prohibit it either.

Outside of guaranteed rest breaks, however, employers are not required to accommodate an employee’s smoking habit. After this research I will ask to take my required 10 minute rest period- and if I choose to smoke a cigarette I will do so respectfully and discretely- as long as I am not in a place where I am breaking the law.

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