On December 22, 2016, the California Supreme Court issued an opinion ruling that California law prohibits “on call” rest periods.

Augustus v. ABM Security Services, a class action involving security guards who claimed they were required to be on call during their rest breaks, initially resulted in a $90 million judgment against ABM after the trial court granted summary judgment for the plaintiffs.  The trial court ruled that an employer violates California law if it requires employees to remain on call during rest periods.  The Court of Appeal reversed, holding that an employer may require employees to remain on call during rest periods without violating California’s rest period requirements.  Appealing to the California Supreme Court, the plaintiffs presented two issues for the Court’s consideration: (1) whether California Labor Code section 226.7 and Industrial Welfare Commission (IWC) Wage Order No. 4-2001 require employees to be relieved of all duties during rest breaks; and (2) whether security guards who remain on call during rest breaks are performing work during that time.

The Supreme Court reversed the Court of Appeal’s decision and held that section 226.7 and IWC Wage Order No. 4-2001 prohibit on-duty rest periods.  The five-justice majority opinion relied on Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1038-1039 (2012), reasoning that state law requires employers to relinquish any control over how employees spend their break time.  Accordingly, employers must relieve their employees of all work-related duties during rest periods, which includes the obligation that an employee remain on call.

In concurring and dissenting, Justice Kruger agreed that an employer must relieve employees of their duties during rest breaks, but she saw no adequate basis for upholding a $90 million judgment that was premised on the “incorrect assumption” that a person who simply has been required to carry a radio, pager, or phone, or to otherwise remain reachable in case of emergency is necessarily also “on duty.”  Justice Corrigan concurred with Justice Kruger that the case should have been remanded for consideration of whether ABM‘s on-call policy actually interfered with its employees‘ ability to use their rest periods as periods of rest.

The case is entitled Augustus v. ABM Security Services, Docket No.: S224853.  A copy of the Opinion can be found here.

Keesal, Young & Logan Employment Group

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