California Court of Appeals Allows On-Call rest Breaks

In a striking move, the California Court of Appeals issued an unpublished opinion wherein it held that California law does not require employers to relieve employees of all duty during rest breaks.

In this class action case, Jennifer Augustus was a security guard employed by ABM Security. She filed the lawsuit on behalf of herself and other security guards claiming they were not provided rest periods pursuant to California law because they were not fully relieved of their duties during their rest breaks. Rather, she contended that they were required to carry radios and remain on call, even when on break.

The trial court certified the class and granted plaintiffs' motion for summary adjudication on the rest period claim, concluding that employers must relieve employees of all duties during rest breaks, including the obligation to remain on call. The plaintiffs then also obtained a summary judgment ruling in their favor on the issue of damages, resulting in a trial court judgment of $55,887,565 in statutory damages; $31,204,465 in pre-judgment interest, and $2,650,056 in waiting time penalties, not to mention the $27 million in attorney's fees plus $4.4 million in litigation costs. 

Not surprisingly, the employer appealed.

The California Court of Appeals, Second Appellate District, Division One, in Augustus v. ABM Security Services, Inc., No. B243788 (Ca. Ct. of Appeals, December 31, 2014), first looked at the text of the applicable wage order, and found that simply being on call does not constitute "work," and therefore does not, in and of itself, violate Labor Code section 226.7 which states employers cannot "require an employee to work during meal or rest or recovery period." Here, though the guards had to be on call during breaks, they were otherwise allowed to engage in, and did engage in, non-work activities. 

Furthermore, the Court of Appeals pointed out subsection 11(A) of Wage Order No. 4 requires employees be "relieved of all duty" during a meal period, but subsection 12(A) of Wage Order No. 4 does not require the same relief "of all duty" for rest breaks. Therefore, it was not the intent of the IWC to require that employees be relieved of all duty during rest periods. Despite the plaintiffs' efforts to rely upon the Brinker case, the Court of Appeals reiterated that Brinker's discussion of relieving employees of all duty during breaks pertained to meal breaks, not rest breaks, and the Court declined to apply this notion to both. 

Ultimately, the Court of Appeals affirmed the class certification order because the employer had a uniform policy of requiring its security guards to remain on call during their rest breaks, which was an issue "eminently suited for class treatment." The individualized issues pointed out by the employer were not germane to class certification, but rather to damages, the Court held. 

Violations of rest periods can be expensive for employers and Hinshaw & Culbertson LLP can help review your rest break policies for compliance with California law.