California Labor &
Employment Law Blog

Feb. 3 2015

California Court:  On-Call Rest Breaks Are Permissible

Topics: Court Decisions, Wage & Hour Issues

Last week a California Court of Appeal issued its published decision in Augustus v. ABM Security Services, Inc., overturning a $90 million class judgment against ABM based on its purported failure to provide its security guards with proper rest breaks.  Although it was undisputed that the security guards regularly were provided with and took rest breaks, the plaintiff alleged that the rest breaks were not fully compliant with California law because the security guards were required to carry communication devices and remain on-call during their rest breaks.  According to the plaintiff, being on-call (even without any actual interruption) meant that the security guards were still under ABM’s control and “on-duty” during rest breaks and this rendered the rest breaks invalid.  The trial court agreed with the plaintiff and, after certifying a class of 15,000 California security guards, granted the plaintiff’s motion for summary adjudication and then entered a judgment in favor of the class to the tune of $90 million in rest break premium pay, interest, and waiting time penalties.  ABM rightly appealed.

Last week, California’s Second District Court of Appeal reversed the trial court’s judgment against ABM and held that the trial court erred in ruling that ABM’s on-call rest break policy violated California law.  The Court of Appeal held that California law only requires that employees be relieved of “working” during rest breaks, but does not require that they be relieved of being on duty or be relieved of all employer control.  The court noted the distinction between California meal break law and California rest break law, explaining that the requirement that employees be free of employer control and relieved of all duty applies only to meal breaks – because such time is unpaid.  Conversely, rest break time is paid time and nothing in the applicable Labor Code provisions or wage orders states that an employee must be free of all employer control during such time.  Thus, a policy requiring security guards to remain on-call during rest breaks is not unlawful so long as employees are not required to perform work during rest breaks.  According to the court, “working” and “remaining available to work” are not the same thing.  The court also emphasized that the plaintiff had not produced any evidence of any rest break actually being interrupted due to the on-call policy and, to the contrary, plaintiff and many class members admitted to regularly taking uninterrupted rest breaks.  Moreover, ABM had a policy permitting rest breaks to be restarted in the event of any interruption.  In these circumstances, the Court of Appeal held that summary judgment should not have been entered against ABM.

The full decision in the ABM case is available here.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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