California Labor &
Employment Law Blog

Dec. 22 2016

California Supreme Court:  On-Call Rest Breaks Are Not Permissible

Topics: Court Decisions, Personnel Policies and Procedures, Wage & Hour Issues

Today the California Supreme Court issued a surprising and unfortunate decision in Augustus v. ABM Security Services, Inc., holding that employers cannot require employees to remain “on-call” during rest breaks, even though these short breaks are part of the employees’ paid hours worked.  The Court held that the same standard that applies to off-duty meal breaks applies to paid rest break time.  More specifically, California law requires that during unpaid, off-duty meal breaks, employees must be relieved of all duties and free from employer control as to how they spend their time.  The Court today held that this is also true for paid rest break time and that an employer does not comply with this standard if it requires employees to remain “on-call,” i.e. viligant and available for possible interruption during rest breaks.  This ruling results in the potential reinstatement of a $90 million verdict against the security company, whose security guards remained on-call during rest breaks and carried radios or other communication devices in the event they needed to return to work.  Even though the record showed that breaks were rarely interrupted and that this on-call requirement was tied to the nature of the work as a security guard, the Court held that the on-call requirement invalidated the rest breaks. 

The Court reasoned:

Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A), they impose practical limitations on an employee‘s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain onsite or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control. But now add to this state of affairs the additional constraints imposed by on-call arrangements. Whatever else being on call entails in the context of a required rest break, that status compels employees to remain at the ready and capable of being summoned to action (see, e.g., Mendiola, supra, 60 Cal.4th at p. 837). Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees‘ retention of freedom to use rest periods for their own purposes. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 586.)

This very case provides an apt example. The trial court determined it was undisputed that ABM‘s policy required plaintiffs to keep radios and pagers on, remain vigilant, and respond if the need arose. Given these intersecting realities, on-call rest periods do not satisfy an employer‘s obligation to relieve employees of all work-related duties and employer control. In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree 17 of control exists when an employer requires employees to remain on call and respond during breaks. (See Wage Order 4, subd. 12(A) [employers must provide a 10-minute rest period per every four hours worked and the break should, whenever practicable, fall in the middle of the work period].) An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk (see § 1030 [regarding use of break time for expressing milk for an infant]) or completing a phone call to arrange child care. The conclusion that on-call rest periods are impermissible is not only the most logical in light of our construction of Wage Order 4, subdivision 12(A), but is the most consistent with the protective purpose of the Labor Code and wage orders. (Murphy, supra, 40 Cal.4th at p. 1105 [―rest periods have long been viewed as part of the remedial worker protection framework‖].) A different result would undermine the rationale underlying the provision of rest periods during the workday. (Id. at p. 1113; Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 586.)

In this author’s opinion, the Court’s decision is unreasonable and impractical, and serves only to further the onslaught of shakedown lawsuits against California employers for alleged violations of meal and rest break laws.  A rest break is 10 minutes worth of time and it is paid.  Because rest break time is so limited, employees necessarily remain on the employer’s premises and subject to the employer’s control by virtue of remaining subject to the employer’s workplace conduct policies.  Simply being required to be available via cell phone (or some similar method of contact) during a rest break in case a work need arises does not mean that the employee cannot use the rest break time to “rest” or conduct personal business.  It just means that the rest break time might get interrupted on occasion.  Under the Court’s reasoning, the rest breaks are not valid rest breaks even if they are not, in fact, interrupted.  The mere requirement to remain available for interruption invalidates the rest break – even though the employee is being PAID by the employer for this time.  With all due respect Court, this is going too far -- even in California.  Furthermore, the decision is contrary to precedent.  California Labor Code section 226.7 simply says that employees cannot be required “to work” during rest breaks.  It does not say that employees must be relieved of all duty and free from employer control.  Moreover, even if this was the standard, the California Supreme Court in Brinker v. Superior Court previously acknowledged that what may suffice to provide compliant breaks may vary from industry to industry and that an employer’s basic requirement is to provide employees a “reasonable opportunity” to take breaks.  Being required to remain on-call is not the same thing as being required to work (particularly on a factual record showing that that even though employees are on-call during rest breaks, their rest breaks are in fact rarely interrupted) and does not deprive employees of a reasonable opportunity to rest – particularly in the context of the security industry where guards commonly have idle time throughout the day.  The Court of Appeal agreed with this reasoning, but the California Supreme Court rejected it.  Justices Kruger and Corrigan thoughtfully dissented.

My opinions aside, the Court’s decision is of course now the law in California.  That means employers  cannot have policies requiring employees to remain on-call (or to otherwise perform any work) during paid rest breaks.  Policies exerting other types of “control” over employees’ activities during rest breaks may also come under fire under this new decision.  One exception is requiring employees to remain on the premises – the Court appears to have acknowledged that this is still okay. 

Now, let’s be clear about what the decision does not mean.  It does not mean that a rest break can never be interrupted or denied.  This can still happen.  You just can’t require your employees to remain “on-call” and available for interruption.  Of course, if you interrupt an otherwise valid rest break before the employee has completed the full 10 minutes or you tell an employee he or she cannot take a rest break due to work demands, you have to pay the employee one hour of pay for the missed break or, in the case of an interrupted break, allow the employee to re-start their rest break once the interruption is completed. 

At least the weather is pretty good 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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