Supreme Court says “no” to on-call rest periods.

Augustus v. ABM Sec. Servs., Inc. (2016) 2 Cal. 5th 257, 211 Cal.Rptr.3d 634.

ABM employs thousands of security guards at residential, retail, office, and industrial sites throughout California. Plaintiff Jennifer Augustus filed a putative class action on behalf of all ABM security guards alleging ABM’s failure “to consistently provide uninterrupted rest periods” in compliance with the state law. Plaintiffs argued that it is undisputed that ABM had a policy of requiring its guards to remain on duty during breaks. ABM argued that it merely required that the guards remain on call—that is, to keep radios and pagers on—in case an incident required a response.

Trial Court certified Plaintiff’s class and granted summary judgment noting that, “an on-duty or on-call break is no break at all”. Trial Court entered judgment for $90 million. The Court of Appeal reversed stating that state law does not require employers to provide off-duty rest periods, and moreover, “simply being on call” does not constitute performing work. Supreme Court reinstated the trial court judgment and reversed the Court of Appeal decision.

Interpreting Labor Code and IWC Wage Order, Supreme court noted that, “reference to a ‘rest period’ in the wage order evokes, quite plainly, a period of rest.” and “Indeed, a rest period during which an employer may require that an employee continue performing duties seems to place too much semantic emphasis on ‘period’—and too little on ‘rest.’…”

Placing reliance upon Brinker (discussed here) court noted that state law requires employers to authorize off-duty rest periods—that is, time during which an employee is relieved from all work-related duties and free from employer control. Court further stated that “[s]everal options exist for an employer who finds it especially burdensome to relieve employees of all duties during rest periods,” including paying the premium set forward in Labor Code section 226.7.

Clearly, on-call rest breaks are “impermissible.”