Executive Summary
Overview: In a 5-2 opinion, the majority of the California Supreme Court ruled, in the matter of Augustus, et al. v. ABM Security Services, Inc., that California law requires that employees on a rest break be completely off duty. They must be “relieve[d] . . . of all work-related duties and employer control during 10-minute rest periods.” In other words, “A rest period, in short, must be a period of rest.”
Coverage: Employers with employees in California.
Effective: Currently in effect.
Action Required: Employers should review their current policies and practices and ensure that employees are taking full, timely, uninterrupted rest breaks.
Under California law, employers must provide employees meal periods and rest periods. Industrial Welfare Commission (“IWC”) Wage Order No. 4-2001. An employee who works more than three-and-one-half hours per day must be permitted to take a paid 10-minute rest period (during which the employee should not be required “to work”) every four hours of work or major fraction thereof.
In Augustus, et al. v. ABM Security Services, Inc., a class of security guards filed a class action lawsuit in Los Angeles Superior Court alleging their employer failed to provide them uninterrupted rest periods as required by law. The company acknowledged or admitted in pretrial discovery that it required guards on rest periods to keep their radios and pagers on, “remain vigilant,” and respond when need arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.
The trial judge ruled the company’s on-call requirement violated California Labor Code and Wage Order as a matter of law and awarded the plaintiffs damages. The employer appealed, and the court of appeal reversed the lower court, concluding that simply being “on-call” — where the guards were otherwise permitted to engage, and did engage, in various non-work activities — was not “performing work” in violation of the state rest break rules. According to the court of appeal, “The issue is whether simply being on call constitutes performing ‘work.’ We conclude it does not.” The California Supreme Court saw it very differently.
The Supreme Court concluded the employer requirement that guards keep their radios and pagers on, remain vigilant, and respond if the need arose during rest breaks failed to satisfy the employer’s obligation to provide duty-free rest breaks. In reaching this decision, the Court gave an everyday construction to the words of the Wage Order. “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods,” the Court said. In other words, “A rest period, in short, must be a period of rest.”
The Court further explained that “the reference to a ‘rest period’ in the wage order evokes, quite plainly, a period of rest.... The most reasonable inference we can draw from the wage order and its context is instead that we should give the term its most common understanding –– a reading consistent with requiring that employers authorize off-duty rest periods.”
This decision emphasizes California employers’ obligations to provide duty-free rest breaks, with no exceptions. As explained by the Court, the exception under Wage Order 4, subdivision 11(A), for on-duty meal period is exceedingly narrow. It applies only when (1) the nature of the work prevents an employee from being relieved of all duty and (2) the employer and employee have agreed, in writing, to the on-duty meal period. The employee, at all times, retains the right to agree to waive his meal period or revoke his waiver. This is markedly different from the non-waivable rest period.
As always, please feel free to contact your Human Resources Business Partner if you have any questions.