Issue By: Christine Balbo Reed

Jennifer Augustus, et al. v. ABM Security Services, Inc.

California Supreme Court (December 22, 2016)

The California Supreme Court reinstated a nearly $90 million award recently supporting a class action claim of security guards who said that their on-call rest breaks were unlawful.

In 2005, Jennifer Augustus (“Augustus”) filed the original suit claiming that ABM Security Services, Inc.’s (“ABM”) policy to carry their radios when they were on breaks was in violation of California Labor Code. The argument was that if an employee is on-call, he or she is not on a break, according to California Labor Code § 226.7. Additionally, Industrial Welfare Commission wage order number four, which is applicable to this type of employee, prohibits on-call rest breaks. Approximately 14,000 guards were awarded nearly $90 million by a lower court for their on-call rest breaks, but the Appellate Court reversed the decision. In December, 2014, it held that being on call does not mean that an employee is performing work in violation of the rest break law.

In December of 2016, the California Supreme Court reversed the 2nd District Court of Appeal, concluding that “state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” The 10-minute rest break must be uninterrupted. “The rest period, in short, must be a period of rest.”

Although rest breaks are compensable time (unlike meal breaks), the employer must still relinquish control over the rest break, said the Court. An employer cannot meet its rest-period obligations by requiring employees to remain on-call. A “broad and intrusive degree of control” exists when there is an on-call rest period because the employee is forced to remain “on call, vigilant, and at the ready.”

The decision made clear that it did not hold that an employee can never recall an employee during a rest break. It clarified: “Nothing in our holding circumscribes an employer’s ability to reasonably reschedule a rest period when the need arises.” If an employer must call an employee off his or her rest break, the employer can restart the break in order to provide the full amount of time uninterrupted, or choose to pay the one hour of premium pay required for not providing a rest period as required. The Supreme Court cautioned that these instances should be “the exception rather than the rule,” to be used in “irregular or unexpected circumstances such as emergencies.”

Employees must be relieved of all duties in order to provide a lawful rest break. Employers should review their rest period practices to make sure they comply with current interpretations of the law.

For a copy of the complete decision, see: Augustus v ABM