On-Duty or On-Call Rest Breaks Violate California Law

California employers have to authorize and permit paid rest breaks to employees who are not exempt from overtime (i.e., non-exempt employees). On December 22, 2016, the California Supreme Court in Augustus v. ABM Security Services, Inc., 2 Cal.5th 257 (2016) ruled that an employer does not meet its rest break obligation when it requires its employees to take on-duty rest breaks.

Augustus involved a class action suit filed on behalf of ABM’s security guards.  The guards alleged that ABM failed to provide uninterrupted rest breaks as required by California law.  ABM acknowledged that it required its security guards to keep their radios and pagers on, and to respond to needs as they arose (such as escorting tenants to parking lots or responding to emergency situations) during their rest periods. The Supreme Court determined that being “on call” in the manner described by the security guards compelled the employees to “remain at the ready and capable of being summoned to action.”  It further noted that the personal activities for which rest breaks were designed, such as going for a walk, completing a phone call, or arranging child care, could not be performed during on-call rest breaks.  Given this, the Court held that employers must relinquish any control over how employees spend their breaks and relieve employees of all duties, including any obligation to remain on call.  However, the Court noted that its holding did not preclude employers from “reasonably rescheduling” rest periods when needed.  It also indicated that employers may seek an exemption from the Division of Labor Standards Enforcement from duty-free rest period requirements as provided in the pertinent Wage Orders.

In light of the Court’s ruling, employers should carefully evaluate their rest-break practices and policies.  Employers should also evaluate their meal break practices and policies.  Employees who fail to authorize and permit their non-exempt employees to take their rest breaks or meal breaks are subject to penalties for each day that their employees were denied off-duty and uninterrupted rest or meal breaks.  Employers who are sued for failing to provide appropriate rest or meal breaks to their employees, including off-duty rest breaks, could face exposure to a significant judgment (the judgment against ABM was over $90 million), including penalties and interest.