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Remaining “On Call” During Rest Breaks Does Not Constitute “Work”

Posted by Eric Kingsley | Mar 29, 2015 | 0 Comments

Allegations Of Rest Break Violations

Plaintiffs Jennifer Augustus, Emmanuel Davis, and Delores Hall, formerly security guards employed by defendant ABM Security Services, Inc. (ABM), allege on behalf of themselves and a class of similarly situated individuals that ABM failed to provide rest periods required by California law. Specifically, the plaintiffs cited ABM's failure to relieve security guards of all duties during rest breaks, instead requiring its guards to remain on call during breaks.

Timeline of Events

  • In 2005, Augustus filed a putative class action, seeking to represent all security guards employed by ABM.
  • In 2006, her complaint was consolidated with similar complaints filed by Davis and Hall, and a master complaint was filed. The master complaint alleged ABM “fail[ed] to consistently provide uninterrupted rest periods,” or premium wages in lieu of rest breaks, as required by section 226.7.3 (See Wage Order No. 4, subd. (12).) ABM admitted it requires its security guards to keep their radios and pagers on during rest breaks, to remain vigilant, and to respond when needs arise, such as when a tenant wishes to be escorted to the parking lot, a building manager must be notified of a mechanical problem, or an emergency situation occurs. Plaintiffs contend a security guard's rest period is therefore indistinguishable from normal security work, which renders every rest break invalid.
  • In 2008, plaintiffs moved for class certification, arguing class certification was warranted because, inter alia, ABM had a uniform company wide policy requiring all guards to remain on duty during their rest breaks.
  • The trial court granted certification in 2009, stating without elaboration that plaintiffs had “provided substantial evidence that the common factual and legal issues predominate over individual factual and legal issues.” The class was defined as all ABM employees who worked “in any security guard position in California at any time during the period from July 12, 2001 through entry of judgment (later redefined to July 1, 2011).
  • In 2010, plaintiffs moved for summary adjudication of their rest period claim, contending it was undisputed ABM's employees were required to remain on call during their rest breaks, which according to Division of Labor Standards Enforcement Opinion Letter 2002.02.22 rendered them per se invalid. The trial court granted plaintiffs' motion, concluding that “[w]hat is relevant is whether the employee remains subject to the control of an employer.” “In order to make sense of the statutory scheme,” the court reasoned, “a rest period must not be subject to employer control; otherwise a ‘rest period' would be part of the work day for which the employer would be required to pay wages in any event.”
  • In 2012, plaintiffs moved for summary judgment on their damages claim, seeking unpaid wages, interest, penalties, attorney fees and an injunction. Plaintiffs contended that because ABM forced its security guards to remain on duty during their rest breaks, it owed each employee an additional hour of payment, awaiting time penalty, and interest for “every single rest break taken by every single class member, for the duration of the Class Period.” A trial court judge certified a class of workers and granted summary judgment for the employees, concluding that “if you are on call, you are not on break.” The judge awarded almost $90 million to the class in statutory damages, interest, penalties, and attorneys' fees. Not surprisingly, ABM appealed.

Appellate Court Reverses California Supreme Court Ruling

Although the text of the wage order does not describe the nature of the rest period, the court looked to Section 226.7 of the Labor Code, which states: “An employer shall not require an employee to work during a meal or rest or recovery period.”

Does simply being on call constitute “work”? The appellate panel wrote, “We conclude it does not.” “The word ‘work' is used as both a noun and verb in Wage Order 4, which defines ‘Hours worked' as ‘the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.' In this definition, ‘work' as a noun means ‘employment'—time during which an employee is subject to an employer's control. ‘Work' as a verb means ‘exertion'—activities an employer may suffer or permit an employee to perform.”

Section 226.7 “uses ‘work' as an infinitive verb contraposed with ‘rest.' It is evident, therefore, that ‘work' in that section means exertion on an employer's behalf. Not all employees at work actually perform work,” the court said. “Remaining on call is an example. On-call status is a state of being, not an action. But section 226.7 prohibits only the action, not the status. In other words, it prohibits only working during a rest break, not remaining available to work.”

“Admittedly, an on-call guard must return to duty if requested, but … remaining available to work is not the same as performing work,” the court said. “In sum, although on-call hours constitute ‘hours worked,' remaining available to work is not the same as performing work,” the court said. “Section 226.7 proscribes only work on a rest break.”

The court's decision was initially made on December 31, 2014, however, the court made its decision public in February along with a few revisions to its holding. The panel did not change its judgment—reversing summary judgment for the class but upholding class certification—and denied the plaintiffs' motion for rehearing. The full opinion of the Court can be found in Augustus v. ABM Security Services, Inc.

To further discuss the latest in employment law, or a potential claim on your behalf, feel free to contact leading California employment lawyers at Kingsley & Kingsley; we are located in Encino, California (Los Angeles Co.). Call us at (818) 990-8300 or click here to contact us via email.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.


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