Dec. 22 2016

Today the California Supreme Court issued a decision in Augustus v. ABM Security Services, Inc., holding that employers cannot require employees to remain “on-call” during rest breaks, even though these short breaks are part of the employees’ paid hours worked.  The Court held that the same standard that applies to off-duty meal breaks applies to paid rest break time.  More specifically, California law requires that during unpaid, off-duty meal breaks, employees must be relieved of all duties and free from employer control as to how they spend their time.  The Court today held that this is also true for paid rest break time and that an employer does not comply with this standard if it requires employees to remain “on-call,” i.e. viligant and available for possible interruption during rest breaks.  This ruling results in the potential reinstatement of a $90 million verdict against the security company, whose security guards remained on-call during rest breaks and carried radios or other communication devices in the event they needed to return to work.  Even though the record showed that breaks were rarely interrupted and that this on-call requirement was tied to the nature of the work as a security guard, the Court held that the on-call requirement invalidated the rest breaks.

The Court reasoned:

Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A), they impose practical limitations on an employee‘s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain onsite or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control. But now add to this state of affairs the additional constraints imposed by on-call arrangements. Whatever else being on call entails in the context of a required rest break, that status compels employees to remain at the ready and capable of being summoned to action (see, e.g., Mendiola, supra, 60 Cal.4th at p. 837). Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees‘ retention of freedom to use rest periods for their own purposes. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 586.)

This very case provides an apt example. The trial court determined it was undisputed that ABM‘s policy required plaintiffs to keep radios and pagers on, remain vigilant, and respond if the need arose. Given these intersecting realities, on-call rest periods do not satisfy an employer‘s obligation to relieve employees of all work-related duties and employer control. In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree 17 of control exists when an employer requires employees to remain on call and respond during breaks. (See Wage Order 4, subd. 12(A) [employers must provide a 10-minute rest period per every four hours worked and the break should, whenever practicable, fall in the middle of the work period].) An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk (see § 1030 [regarding use of break time for expressing milk for an infant]) or completing a phone call to arrange child care. The conclusion that on-call rest periods are impermissible is not only the most logical in light of our construction of Wage Order 4, subdivision 12(A), but is the most consistent with the protective purpose of the Labor Code and wage orders. (Murphy, supra, 40 Cal.4th at p. 1105 [―rest periods have long been viewed as part of the remedial worker protection framework‖].) A different result would undermine the rationale underlying the provision of rest periods during the workday. (Id. at p. 1113; Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 586.)