California Labor and Employment Defense Blog

Employees Cannot be "On-Call" During Rest Breaks -- Augustus v. ABM Security Services, Inc.

 In its 2014 decision of Brinker v. Superior Court, the California Supreme Court explained that employees must be "relieved of all duties" during their statutorily required 30-minute meal periods.  Since that time, however, courts have struggled to define the exact status that employees are entitled to enjoy during the shorter 10-minute rest breaks which are also required by statute.   In particular, is it permissible for employees to remain "on-call" during their rest breaks?

For example, ABM Industries required its security guards to wear two-way radios and pagers and to remain "vigilant" and "available to respond" during their rest breaks.  The trial court entered a 90 million class action judgment on the ground that this "on-call" status was tantamount to requiring the employees to work during their rest breaks.  An appellate panel overturned this judgment on the ground that being on-call should not be considered the same as being required "to work."     

But the December 22, 2016 Supreme Court opinion in  Augustus v. ABM Industries, emphatically settled the issue.  The Supreme Court held that the same "relieved of all duty" standard for legally compliant meal periods also applies to rest periods. This means that during rest periods employees must be temporarily relieved of even the minimal duty to remain available to respond to radio or pager calls.  As a result, "state law prohibits on-duty and on-call rest periods."


 As clarified, the standard is very much a bright-line rule in which employees may not be subjected to any employer control or affirmative work duties during rest breaks.  For example, the court explained that:

  • "The reference to a 'rest period' in the wage orders evokes, quite plainly, a period of rest."  And "The ordinary meaning of 'rest' conveys, in this context, the opposite of work" -- i.e., "an interval of time free from labor, work, or any other employment-related duties."  
  • Thus, "employer's responsibilities are the same for meal and rest periods," that is, to "relieve the employee of all duty and relinquish any control over the employee and how he or she spends the time."
  • "But when forced to take on-duty rest periods, an employee essentially performs free work, i.e., the employee receives the same amount of compensation for working through the rest period that the employee would have received had she or he been permitted to take off-duty rest periods."

 These legal requirements are simply incompatible with any sort of "on-call" or "on-duty" status regardless of how short-term the requirement.

We next consider the second question raised by the parties: can an employer satisfy its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call? The answer, we conclude, is no. . . . [O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.

The Augustus Court did note, however, that the law does not prohibit "recalling" a worker from a particular rest period due to an exigency.  If this happens, the employer simply needs to provide a new, legally compliant rest period within the time frame required by law.  Or, in the alternative, the employer must pay the statutory penalty of one-hour's wages under Labor Code section 226.7.  
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