California Supreme Court Invalidates On-Call Rest Breaks
The California Supreme Court has finally issued its decision in the case of Augustus v. ABM Security Services, finding that state law precludes “on duty” rest breaks, including “on-call” rest breaks. The Court held that employers must relieve employees of all duty during rest breaks, and relinquish any control over how employees spend their break time.
The case reverses a decision of the Court of Appeal for the Second District, which held that on-call rest periods were permissible. Plaintiff Jennifer Augustus and others, formerly security guards employed by defendant ABM Security Services, Inc., brought a class action against ABM on the ground that ABM failed to provide rest periods required by California law based on ABM’s failure to relieve security guards of all duties during rest breaks, because ABM required its guards to remain on call during breaks. The trial court certified a class and granted plaintiffs' motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. ABM appealed.
The Court of Appeal reversed the trial court’s order, holding that an employee who is on call during a rest period is not thereby deprived of the rest period. The appellate court affirmed the decision to certify the class.
The Supreme Court reversed the Court of Appeals. In a 5-2 decision authored by recently appointed Justice Cuellar, the Court held that 1) “on duty” rest breaks do not satisfy the employer’s obligation to provide rest breaks, and 2) “on-call” rest periods do not satisfy the employer’s obligation to provide rest breaks. The Court reasoned that an employee who is compelled “to remain at the ready, tethered by time and policy to particular locations or communications devices,” is not relieved of all duties during and has therefore failed to receive a rest period. The Court took the position that an employee who is required to carry a device or otherwise make arrangements so the employer can reach the employee during a break, respond when the employer seeks contact with the employee, and perform other work if the employer so requests, does not retain the freedom to use rest periods for their own purposes.
What Does This Mean for Employers?
On-call rest breaks are no longer an option, unless allowed by a specific Wage Order (such as Wage Order 5.) Employers should familiarize themselves with the Wage Order applicable to them and consult legal counsel for guidance. Employers should also draft policies, inform employees, and train managers, to ensure that employees’ rest break time is subject to the same “relief from duty” standard as meal periods and should not be considered or referred to as “on-call.” Employers whose employees carry communication devices for the performance of their job duties should draft and enforce policies advising that employees need not carry or respond to those devices during breaks.
It will be interesting to see how Augustus is applied in future cases because the precise nature of the control which must be relinquished, though broadly stated as “any control,” is not quite so broad. As the dissent points out, the majority opinion does not define what it means to be “on-call” and there is no fixed meaning for that term. ABM raised the concern that prohibiting on-call rest breaks would mean that “California law requires an employer to categorically prohibit its employees from ever being recalled to work while they are on rest breaks, regardless of the exigency…” The court tersely responded, “Not so. Nothing in our holding circumscribes an employer’s ability to reasonably reschedule a rest period when the need arises.” Of course, this must be balanced with the general requirement that an employee take a rest break every four hours, and that the rest break should be taken toward the middle of that four hour period if practicable.
It is important to note that it remains the case that if a rest break is actually interrupted for any reason and not restarted for a full ten minutes, the employer owes the employee the rest break premium.