Employers Beware: On-Duty and On-Call Rest Breaks Are Prohibited

On December 22, 2016, the California Supreme Court issued a decision, Augustus v. ABM Security Services, Inc., concluding that state law prohibits on-duty and on-call rest periods. This decision reverses a January 2015 decision in which the Court of Appeal ruled that such rest periods were lawful, even though employees might have to respond to an emergency call during a rest period.

The Supreme Court held that “during rest periods, employers must relieve employees of all duties and relinquish control over how the employees spend their time,” relying upon their 2012 decision in Brinker Restaurant Corporation v. Superior Court. In other words, employees cannot be restricted in how they use their time, where they spend their time, and cannot be subjected to any other employer restrictions during their 10 minute legally mandated rest breaks. The Supreme Court made clear that its holding applied both to on-duty rest periods (where an employee is actually working) as well as on-call rest periods (where an employee is not working, but is prepared to and will return to work during the rest period upon request from the employer).

Acknowledging there are times an employer may “find it especially burdensome to relieve their employees of all duties during rest periods- including the duty to remain on call,” the Court provided that Employers “may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in [the Wage Order].”

This decision creates genuine problems for employers who have a legitimate business need for on-duty or on-call employees. For example, there are certain employees who may lawfully be able to agree to have on-duty meals due to the nature of the job (see e.g. Wage Order 4-2001 11(A)). Because there is no similar provision for rest breaks, however, based on this decision, employers who need employees to remain on duty during rest breaks should review the impact of this case and the potential need to pay a premium if a lawful off-duty rest break is not authorized or permitted.

Recommendations for Employers:

  • Advise managers against calling employees while they are on break.
  • Do not require that employees carry a cell phone other mandated communication devices (such as a “walkie talkie”) during breaks.
  • Do not restrict employees from leaving the premises during a break.
  • Consider implementing a policy advising employees to inform management if a rest break is interrupted, or if they feel they are unable to take a rest break so that management can provide either an uninterrupted rest break or a rest break premium.

-Sarah Hamilton

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