California Appellate Court Permits On-Call Rest Breaks [UPDATED]
Published by Eric A. Welter on March 25, 2015
[Update: On April 29, 2015, the California Supreme Court granted review of Augustus v. ABM Security Services, Inc. The grant of review makes the appellate court’s opinion not citable.] In Augustus v. ABM Security Services, Inc., a California Court of Appeal overturned a trial court’s award of $90 million for a class of security guards who […]
[Update: On April 29, 2015, the California Supreme Court granted review of Augustus v. ABM Security Services, Inc. The grant of review makes the appellate court’s opinion not citable.] In Augustus v. ABM Security Services, Inc., a California Court of Appeal overturned a trial court’s award of $90 million for a class of security guards who were allegedly denied rest breaks. In overturning the award, the appellate court held that while an employee cannot be required to perform work while on a rest break, an on-call rest break does not necessarily require the employee to perform work.
In Augustus, ABM Security Services required its security guards to remain on-call and to carry a radio or pager when the employee was on his/her rest break. At some sites, only one security guard was scheduled to work at a time. At other sites, multiple security guards worked during the same shift. The plaintiffs alleged that since they were required to remain on-call, they were not relieved of all duties, and therefore, not afforded rest periods.
The trial court certified a rest break class of fifteen thousand security guards and entered summary adjudication for plaintiffs, holding that an employer must relieve its employees of all duties during a rest break, including the obligation to remain on call.
On appeal, the Court of Appeal reversed and held that being on call does not constitute work for purposes of rest breaks. The Court held that “although ABM’s security guards were required to remain on call during their rest breaks, they were otherwise permitted to engage and did engage in various non-work activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet.”
In differentiating between rest breaks and meal periods, the Court held that for rest breaks “remaining available to work is not the same as actually working.” As the Industrial Welfare Commission (“IWC”) Wage Order provides that employees must be “relieved of all duty” during meal periods, the Court concluded that if the IWC had wanted to relieve an employee of all duty during a rest break, including the duty to remain on call, it knew how to do so.
Laconic Lookout: Employers should be precise when defining and distinguishing employee rest breaks vs. meal periods, and ensure that guidelines are well established to identify what will be expected of employees during these times.Topics: ABM Security Services, Augustus, California, Class Actions, employers, Industrial Welfare Commission, meal periods, rest breaks, Wage and Hour