The worst aspect of California employment law is the way it combines unclear requirements with exorbitant penalties for noncompliance. So employers can’t necessarily tell what the law requires and, if they get it wrong, face crippling financial penalties. The latest illustration of that principle comes from the California Supreme Court’s December 22, 2016 opinion in Augustus v. ABM Security Services, Inc.

The plaintiffs in this consolidated class action worked as security guards and were required to keep their pagers and radio phones on during their 10-minute rest periods and to respond when needs arose. ABM argued that it was providing a sufficient rest period. But the trial court disagreed and decided on plaintiffs summary judgment motions that they were not relieved of all duty and that they were therefore entitled to $90 million in damages, interest, and penalties (the penalty for missing a 10-minute rest period being an hour of pay).

ABM appealed and the Court of Appeal reversed, holding that being on call does not constitute performing work. Then the California Supreme Court granted review and reversed the Court of Appeal, reinstating the $90 million judgment.

The Industrial Welfare Commission Wage Orders clearly state that employees must be “relieved of all duty” during meal periods. But there is no corresponding language in the rest period requirement. Instead, the majority opinion intuited that employees must be relieved of all duties during rest periods from analyzing the definition of “rest.” The court also looked at Labor Code §226.7, which prohibits employers from requiring employees to work during rest periods. Finally, the court focused on the fact that the Wage Orders make provisions for on-duty meal periods, but not for on-duty rest periods. That being the case, it reasoned, on-duty rest periods must not be allowed.

Copyright: twinsterphoto / 123RF Stock Photo
Copyright: twinsterphoto / 123RF Stock Photo

All of this begs the question whether being required to carry a radio or pager constitutes work. The majority opinion states that employees are not relieved of all duties if they’re required to be on call. This conclusion, it notes, is the most consistent with its interpretation of the Wage Orders and Labor Code and with the axiom that those sources should be construed in a manner to protect employees.

A two-justice dissenting opinion explained that the “the bare requirement to carry a radio, phone, pager, or other communication device in case of emergency does not constitute ‘work’ in any relevant sense of the term.” This was especially true, the dissent noted, given the lack of any evidence that any guards’ rest breaks ever were, in fact, interrupted. The dissent also explained that the majority opinion creates further ambiguity by saying that the employees in question were deprived of their rest periods where they were required to “remain on call, vigilant, and at the ready during their rest periods.” If requiring employees to be “vigilant” and “at the ready” is part of what made these rest periods inadequate, the dissent asked, shouldn’t the court explain what that means? Or do we need another decade’s worth of class-action litigation to sort that out, too?

Here are steps employers should take now to comply with this decision:

  • Prohibit employees from carrying employer-provided pagers, radio phones, or similar communication devices at work.
  • In most situations, you should not prohibit employees from using their personal mobile phones on rest breaks, since the time is their own and they must be free from employer control. But you should not require them to monitor their phones.
  • If an employee’s rest period is interrupted with work requirements, either provide a different uninterrupted 10-minute rest period (you could start the 10 minutes running again after the interruption) or pay the penalty.
  • If, as the employer, you exercise any control over what employees can do during their rest periods, consult counsel as to whether that practice is still defensible.

If an employee is required to be available by radio, pager, mobile phone, or the like on a rest break, does it count as a rest break? Like so much of California employment law, it depends on whom you ask.

We previously reported on Augustus v. ABM, where the court of appeal answered that question: “Yes,” explaining that requiring someone to be available to work wasn’t the same as requiring them to work. In fact, we got a little glib about starting off the new year with good news.

Now, the California Supreme Court has granted review and will decide the issue anew. So, for now, the answer to the question is a clear “Maybe.”


Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo
  1. The conservative response to this development would be to have employees, whenever practicable, hand-off their communication devices (other than personal cell phones) during rest breaks.
  2. The standard for meal periods is different. There’s no question for meal periods that employees must be “relieved of all duty.”
  3. Anytime I use “California,” “employment law,” and “good news” together in a sentence, assume that we’re just waiting for the other shoe to drop.

While the 2012 California Supreme Court decision in Brinker clarified some of the landscape for meal and rest period litigation, break requirements continue to give rise to more than their share of class action claims.

In Augustus v. ABM, security guards filed suit in Los Angeles in 2005 arguing that they did not receive adequate rest breaks because they were required to carry radios and be available, if necessary. In 2012, the plaintiff’s moved for summary judgment arguing that the evidence was undisputed that ABM violated the law and that they were entitled to damages, interest, and penalties totaling $103.8 million. Despite the absence of any evidence that anyone’s rest period had actually been interrupted, the superior court granted the motion and awarded plaintiffs $89.7 million.

ABM appealed and the appellate court, in an unpublished opinion, reversed. The appellate court explained that Labor Code § 226.7 said that “[a]n employer shall not require an employee to work during a meal or rest or recovery period.” (The statute has since been amended to include recovery periods to prevent heat illness.) But requiring someone to work is different than requiring them to be available. In addition, while the wage orders clearly state that employees must be relieved of all duties during meal periods, they contain no such requirement for rest periods. So according to the appellate court, employees need not be relieved of all duties during rest periods.

Because the decision is unpublished and can still be taken up for review, this may not be the final word on the topic. [On January 29, 2015, the case was ordered to be published.] Still, it’s nice for our first post of 2015 to be good news for employers.