California Employees Can’t Be ‘On Call’ During Breaks

Employers cannot require that workers in California remain “on call” during mandatory rest breaks, the state’s Supreme Court has determined.

California generally requires that employees take a 10-minute rest break for every 4 hours worked. And, according to the court’s new ruling, “[a] rest period, in short, must be a period of rest.”

The court reached that conclusion in a lawsuit filed by a group of security guards working for ABM Security Services. The employer required the guards to keep their pagers and radio phones on during rest periods, and to remain vigilant and responsive to calls. For example, they were required to walk clients to a parking lot, notify building mangers of mechanical problems, and respond to emergencies.

The guards sued, alleging that this amounted to a failure to provide the state-mandated rest breaks. ABM disagreed, arguing that, because interruptions were rare, it had fulfilled that responsibility.

A trial court ruled in the guards’ favor, finding that that the on-call rest periods were not truly rest breaks because they looked the same as the rest of their workday. It awarded the guards about $90 million in damages, interest, and penalties, according to court documents.

ABM then successfully appealed the judgment but the guards took the question to the state’s Supreme Court, which ultimately ruled in their favor.

The court first looked to California Wage Order 4, which requires meal and rest breaks. “The reference to a ‘rest period’ in the wage order evokes, quite plainly, a period of rest,” the court said. That interpretation also is supported by a state law (Cal. Lab. Code §226.7) prohibiting employers from requiring an employee to work “during a meal or rest or recovery period,” the court added.

Finally, the state’s Department of Labor also agrees, the court noted. In informal letters, its Division of Labor Standards Enforcement has taken the position that rest periods “must be, as the language implies, duty-free.”

Given the practical realities of rest period, an employer cannot satisfy its obligation while requiring that an employee remain on call, the court concluded, because he or she is not truly able to use the break as he or she chooses. For example, he cannot take a walk because at some point that during walk, he could be 5 minutes away from being able to respond to a call. Such an on-call requirement also would prevent an employee from using the break to pump breast milk, for example, or make a personal phone call, the court said. It noted, however, that the law does not prevent employers from rescheduling rest breaks, if the need arises.

But generally, employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call,” the court said (Augustus v. ABM Security Services, Inc., No. S224853 (Dec. 22, 2016)).

Employer Takeaway

In light of the ruling in Augustus, employers may want to remind employees, including managers, that “rest means rest,” said Michelle Lee Flores, a member of Cozen O’Connor and a contributor to the California Employment Law Letter.

Because rest breaks are on the clock, employers need to make clear that “the rest period needs to be a ‘period of rest’ and being at the ready is not rest,” she told BLR^®.

Adding such reminders to training is a good idea, too, and hopefully handbooks already state that the employer gives 10 minutes of rest for each 4 hours of work (or major fraction thereof), Flores said.