Revisiting Augustus v. ABM Security Services, Inc.; Whether California Employers May Require Non-Exempt Employees Remain On-Site During Rest Periods

By: Allyson K. Thompson

As our firm discussed in a previous publication titled California Prohibits On-Duty and On-Call Rest Periods, 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 employee of all duties and relinquish any control over how employees spend their break time."

After nearly two years since the Augustus v. ABM Security Services, Inc., 2 Cal.5th 257 decision was first rendered, employers are still grappling with the ambiguity of whether they may require employees to remain on-site during rest breaks.

While the answer has yet to be directly addressed by the courts or memorialized in any official guidelines by California's Division of Labor Standards Enforcement ("DLSE"), the DLSE has provided its informal interpretation of the issue in its responses to Frequently Asked Questions (FAQs) posted to its website as follows:

"No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In [ABM Security Services, Inc.], the California Supreme Court held that the rest period requirement '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.'"

These FAQs are not controlling law and employers should consult an employment lawyer prior to amending their rest period policies or procedures. However, Augustus and the DLSE's informal position indicate that prohibiting employees from going off-site during rest periods may run afoul of the law by failing to "relieve" and "relinquish control" over the employee.

Nevertheless, what is undisputable and important to note is that the rest period may not exceed 10 minutes for non-exempt employees. Employees who do in fact decide to leave their place of employment during a 10-minute rest period are assuming the risk that their break may exceed the 10 minutes. Of course, any rest period exceeding 10 minutes may be grounds for termination, discipline, or the like.

California employers should ensure that their employee handbooks and any policies or procedures in place regarding rest periods are updated and reflect the repercussions of the Augustus decision.

Our Employment Team at Kring & Chung, LLP has thoroughly discussed the issue and prepared specific language for California employers to include in their employee handbooks, policies and procedures in order to best protect them from violations of the law while.

Allyson K. Thompson is a Partner of Kring & Chung, LLP. She can be reached at (949) 261-7700 or via email at athompson@kringandchung.com.

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