California Employers May Not Control How Employees Spend Their Break Time or Require On-Call Rest Periods

January 2017 (No. 1)

Labor and Employment

Action Item: California employers are urged to review their rest period policies and practices, and consider changes that will ensure they relinquish control over how employees spend their break time and relieve their employees of all duties during rest periods, including the obligation that an employee remain on-call.

The California Supreme Court held in Augustus v. ABM Security Services, Inc. that California law prohibits on-duty and on-call rest periods and requires instead that employers relinquish any control over how employees spend their break time. The ABM case was brought by a class of security guards who were required to keep their pagers and radio phones on during rest periods, to remain vigilant, and to be available to respond to calls when the need arose. Under these circumstances, the Court concluded that ABM did not permit its employees to take off-duty rest periods because it did not relieve the employees of all duties and relinquish control over how the employees spend their break time.

First, the Court concluded that employers are obligated to permit—and authorize employees to take—off-duty rest periods. During rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time. The Court reasoned that this conclusion best effectuates the wage order’s purpose and provisions because the reference to “rest period” evokes a “period of rest,” which is the opposite of work. Labor Code section 226.7 prohibits employers from “requir[ing] any employee to work during any meal or rest period.”

Next, the Court considered the issue of whether an employer can 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 (reachable in case of an emergency). The Court concluded that an on-call rest period is not permissible. Although the wage orders are silent as to on-call rest periods, the Court reasoned that “[e]mployees 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.” The Court held that these obligations were “irreconcilable” with the employees' freedom to use rest periods for their own purposes.

In a nod to practicality, the Court suggested that there were “[s]everal options” available to employers for whom it would be burdensome to relieve their employees of all duties during rest periods, including providing employees with another rest period if the first rest period was interrupted, or pay the premium pay associated with a rest period violation. The Court also noted in a footnote, however, that “[n]either of these options implies that employers may pervasively interrupt scheduled rest periods” and that “such options should be the exception rather than the rule.”

© 2017, Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.