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.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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