Being on Call in California Does Not Impede on Rest Breaks

Authored by: Jordon R. Ferguson and Natalie R. Alameddine

Augustus v. ABM Security Services, Inc., No. B243788 (filed December 31, 2014, pub. ord. January 29, 2015): In its recently published decision, the California Court of Appeal held that on-call rest breaks are permissible. In a nutshell, “although on-call hours constitute ‘hours worked,’ remaining available to work is not the same as performing work.” This case provides clarity on employers’ obligations for rest periods in the wake of Brinker Restaurant Corp. v. Superior Court.

In 2012, the California Supreme Court rendered its decision in Brinker regarding an employer’s duties under the California Labor Code and wage orders to provide meal periods to non-exempt employees. There, the court held that employers are not required to police meal breaks and ensure that no work was performed; “[b]ona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.” The Brinker decision, however, did not address an employer’s obligations to relieve an employee of his or her duties during rest periods.

It is well-settled that an employee who works more than three and one-half hours per day must be permitted to take a paid 10-minute rest period per every four hours of work or major fraction thereof.  Labor Code section 226.7(b) specifically provides that an employer cannot require an employee “to work” during rest periods.

In Augustus, a certified class of security guards in California alleged that ABM failed to consistently provide uninterrupted rest periods (or premiums in lieu) by requiring them to keep their radios and pagers on during rest breaks and to return to duty if requested. By remaining on call, the guards argued they were never truly relieved of duty and therefore did not receive proper rest breaks, even if their breaks were uninterrupted. The court disagreed.

The court held that merely remaining subject to the control of an employer via on-call status does not constitute “work.” Rather, the Augustus court held that being on call is a “state of being, not an action.” Section 226.7 “prohibits only working during a rest break, not remaining available to work.” In Augustus, the class members, despite being on call, regularly took uninterrupted rest breaks during which they engaged in leisurely activities such as smoking, reading, and surfing the Internet. Thus, the court held that these employees were not engaged in exerting work on the employer’s behalf. Because ABM was not requiring the guards to work during their breaks, ABM was not in violation of the Labor Code or wage order.

Practical Impact

The Augustus decision has clear implications on employers in the security services industry that have employees with on-call rest periods. However, the analysis in Augustus is likely to also affect a broader spectrum of industries.

Although the court examined the “scope and duties of Wage Order No. 4 and [Labor Code] sections 226.7 and 512” in the context of a security company, it also acknowledged that other wage orders impose similar or identical meal and rest period requirements for other non-exempt employees in California. Accordingly, the court’s decision is likely applicable to all non-exempt employees with on-call rest breaks, including industries outside of the security services context.

According to Robert R. Roginson, a shareholder in the Los Angeles office of Ogletree Deakins, “In Augustus, the court properly recognized that California’s rest period requirements do not require that the employee be completely relieved of all duty. Indeed, the rest period provisions themselves state that rest periods constitute ‘hours worked’ and thus the workers can be subject to the control of the employer. What is necessary is that the worker be relieved of performing work for 10 minutes. It is expected that some plaintiffs’ lawyers may contend the decision alters the standards for on-call time generally. Those contentions should be rejected. The California Labor Commissioner and California courts have long recognized that requiring an employee to carry a pager does not demonstrate an exercise of control by an employer sufficient to make such time compensable, and any reading of Augustus as so demonstrating would be a clear departure from that longstanding administrative and case authority.”