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California law "prohibits on duty and on call rest periods" for non-exempt employees

On December 22, 2016, the California Supreme Court held in Augustus v. ABM Security Services, that California law "prohibits on duty and on call rest periods" for non-exempt employees. Almost all California employers must provide rest periods for non-exempt employees of at least 10 minutes for each four hours of work or major fraction thereof. The California Supreme Court stated, "during required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time." 

Background

The case involved security guards employed by ABM Security Services, Inc., who claimed that ABM failed to consistently provide uninterrupted rest periods as required by California law. ABM had a policy requiring security guards, while on rest periods, to carry pagers and potentially respond to calls. The trial court held that a rest period subject to such control was indistinguishable from the rest of the work day, and thus not a break at all. 

What Constitutes a Valid Rest Period?

The Supreme Court found that ABM had a policy relating to rest breaks, and that such policy violated California law. Specifically, that policy contained three features that the Court found, in the aggregate, violated the California Industrial Welfare Commission Order: While on a rest period, the employee was required to: (i) carry a pager or radio; (ii) "remain vigilant"; and (iii) respond to calls if necessary. The restrictions on their face violated the law, according to the Court, even though the evidence before the trial court was that employees did not routinely receive calls or have rest periods interrupted. The Court stated, "one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during the ten-minute rest periods." 

What Does the Decision Mean for Employees?

Simply it means that employers cannot have policies requiring employees to remain on-call (or to otherwise perform any work) during paid rest breaks. Any policy exerting any type of control over employees' activities during rest breaks may also deemed in violation of California law. The only exception is requiring employees to remain on the premises as the Court appears to acknowledge that such "control" is still acceptable. 

This does not mean that a rest break can never be interrupted or denied. But of course, if an otherwise valid rest break is interrupted before an employee has completed the full 10 minutes, an employee must be paid an hour's pay or an employer must re-start the rest break once the interruption is completed.

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