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California Supreme Court Rules No On-Duty or On-Call Rest Breaks

Posted by Eric Kingsley | Jan 09, 2017 | 0 Comments

On December 22, 2016, the California Supreme Court in Augustus v. ABM Security Services, Inc., ruled that California law prohibits on-duty and on-call rest breaks.

Rest break security guard

In Augustus v. ABM Security Services, Inc., the plaintiffs were security guards who sued their employer for, among other things, failing to provide completely off-duty rest breaks. Plaintiffs claimed that as a company policy and practice they were required to keep their pagers and walkie talkies on during their rest breaks in case of emergencies or to address the needs of ABM's clientele. In July of 2012, a Los Angeles trial court awarded the class of more than 14,000 security guards almost $90 million in statutory damages, interest, and penalties against their employer for violating California law. The California Court of Appeal then reversed the trial court, holding that state law does not require employers to provide off-duty rest breaks, and that “simply being on call,” without more, does not constitute performing work.

California Supreme Court Ruling
The December 22, 2016 California Supreme Court ruling stated that California “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time” during legally required rest breaks. In so doing, the Court reinstated the $90 million judgment for the class of security guards, ruling that ABM Security Services unlawfully subjected employees to its control by requiring them to remain on-call during rest breaks by carrying pagers and radio phones and responding to calls when needed.

The Supreme Court addressed whether: (1) employers must permit their employees to take off-duty rest periods under California Labor Code section 226.7 and Wage Order 4; and (2) employers may require their employees to remain on-call during rest breaks. The Supreme Court decided that ABM's requirement that its guards carry a communications device or otherwise remain reachable in case of emergency, standing alone, is incompatible with ABM's legal obligation to provide a rest period.

Off-Duty Rest Periods
The Court concluded “that the construction of Wage Order 4, subdivision 12(A) that best effectuates the order's purpose and remains true to its provisions is one that obligates employers to permit––and authorizes employees to take––off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”

On-Call Rest Periods
The Court concluded that on-call rest periods are impermissible, reasoning that “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.”

Impact on California Employers
While the Augustus ruling is unfavorable to employers, the Court did hold that employers are not without options if the needs of the business require an employee to work during a rest break: employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay of one hour at the employee's regular rate under Labor Code section 226.7 and the Wage Order.

On the other hand, the Augustus ruling confirms the Court's focus on the protection of employee rights and makes clear that, to the extent there was ever any question, employers must relieve employees of all work and responsibilities in order to comply with California law. This case also demonstrates the severe risk that employers face in not remaining vigilant in ensuring that their policies comply with California law, even when that law is not explicitly stated.

Should you have questions about meal & rest breaks, or any of California's wage and hour laws, don'y hesitate to contact leading employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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