June 22, 2017

California Supreme Court Rejects On-Call Rest Breaks

California Wage Order 4 requires employers to provide non-exempt hourly employees with a 10-minute, paid rest break for every 3.5 hours worked. But, are California employers required to relieve non-exempt employees of all work-related duties and employer control while on their statutory rest breaks? Can an employer satisfy its obligation if the employer requires its employees to remain on-call during rest breaks? The California Supreme Court addressed both of these questions in Augustus v. ABM Security Services, Inc., concluding that California law prohibits on-duty and on-call rest breaks.

In Augustus, a class of security guards was subject to a policy requiring them “to keep their radios and pagers on, remain vigilant, and respond when needs arose” during rest periods violated state law by failing to provide the plaintiffs with uninterrupted rest periods. The company acknowledged that it maintained such policy, but argued that merely requiring the employees to remain on-call in case an incident arose satisfied its rest period obligations. 

The California Supreme Court held that the phrase “rest period” means just that — “a period of rest.” Therefore, employers must relieve employees of all duties and relinquish control over how they spend their time during rest periods. This much of the decision comports with common sense and the most employers’ practices—employees are free to step away from their work duties for a 10-minute break. 

The remainder of the case is of more concern for employers with non-exempt employees who are required to be available or on-call while taking their breaks and drew a sharp dissent from two of the justices. Despite the fact that there was no evidence that any employee’s rest period was ever actually interrupted in Augustus, the California Supreme Court ruled that an employer cannot satisfy its obligations to relieve employees of all work-related duties, but still require employees to remain on-call during rest periods. The Court reasoned that because the employees were required to carry a device or make arrangements so the employer could reach them during the break, they were not freed from employer control over how they spend their time. Employers cannot compel employees “to remain at the ready, tethered by time and policy to particular locations or communications devices…” the Court noted.

The dissent interpreted the majority opinion to entail a “categorical ban on requiring an employee to carry a pager or other portable communication device, without more, is inherently incompatible with the requirement to provide a duty-free rest period—even if the pager never sounds or the phone never rings.” A requirement that employees remain reachable “is not ‘work’ for purposes of wage and hour laws” the dissent stated. It is not clear whether the Court intended to draw such a hard line.

In light of the court’s holding, California employers should review their rest period policies and practices. Care should be taken to avoid any policies or procedures that appear to impose work duties or exert control over employee activities during a rest break. In particular, employers should revisit any on-call requirements imposed on employees while on rest breaks and also review their pay practices to ensure that employees are provided premium pay when they are not provided fully compliant rest breaks.