California Prohibits On-Duty and On-Call Rest Periods

By: Kyle D. Kring

Recently, in Augustus v. ABM Security Services, Inc., the Supreme Court of California ruled that employers may not require their employees to remain "on call" during rest periods. The Court noted that, "state law prohibits on-duty and on-call rest periods" and "during rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time."

In Augustus, plaintiff and the members of the class were security guards for defendant ABM. They were required to keep their pages and radios on during rest periods and remain available to answer and respond to calls if the necessary. Plaintiffs alleged that ABM failed to provide uninterrupted rest periods as required by state law and ABM acknowledged the fact. ABM argued that their policy did not violate state law because it simply required the guards to keep their devices on in case an incident arose. Importantly, plaintiffs presented evidence that breaks were regularly uninterrupted.

The trial court granted plaintiff's motion for summary judgment on damages, awarding $90 million, finding that an on-call break is no break at all. The Court of Appeal reversed, concluding that merely being on-call does not equate to performing work and therefore state law does not require employers to provide off-duty rest periods.

The Supreme Court disagreed and interpreted both Labor Code section 226.7 and Wage Order 4, which cover employees similar to plaintiffs, by looking at the plain language of each. Labor Code section 226.7(b) states that "an employer shall not require an employee to work during a meal or rest or recover period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission..."

The IWC's Wage Order 4, subdivision 12 defines the scope of an employee's right to rest periods. It establishes that employers shall authorize employees to take rest periods of 10 minutes per four hours of work and shall count rest periods as hours worked with no deduction from wages. The Court suggested that the wage order's reference to "rest" means a period of rest and that "if employers could require employees to remain on duty during breaks, there would be no reason for the IWC to prohibit deduction of wages for rest periods; time spend performing duties would plainly require payment of wages."

It should be noted that the IWC allows on-duty breaks for meal breaks (subdivision 11(A)) and could have done so in subdivision 12(A). It's failure to do so is important and shows the intent for on-duty rest periods to be prohibited.

Moving forward, employers should ensure the following:

1. Relieve employees of all duties during their rest breaks.

2. Discontinue the use of on-call duties during rest breaks.

3. Review your employee handbook and rest break provisions to ensure they are consistent with the Augustus opinion.

4. Train your supervisors and managers to not interrupt employees during their rest breaks.

Kyle D. Kring is the Founding Partner of Kring & Chung, LLP. He can be reached at (949) 345-1621 or kkring@kringandchung.com.

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