Rest periods and on-call status

Is it a lawful rest period if the employee is on-call?

On January 29, 2015, the Second District Court of Appeal published a decision concerning the issue of whether employers may require employees to be on-call during rest breaks. In Augustus v. ABM Sec. Servs. (Cal. App. 2nd Dist. Dec. 31, 2014) 2014 Cal. App. LEXIS 1209, the court concluded that employees are not deprived of rest breaks so long as they are not required to work.

This case involves a class of security workers to whom ABM afforded rest breaks, but who were also on-call during those breaks. The plaintiffs contended that because ABM did relieve them of all duties during the rest breaks—given their on-call status—they were effectively denied those breaks. The court in Augustus disagreed.

The court first looked to the Industrial Welfare Commission Wage Order covering the employees (number four). The Wage Order states that every employer must provide employees with one or more rest periods, based on the total hours worked daily, except those employees who work less than three-and-one-half hours in a day. Because the Wage Order does not describe the nature of the rest period, the court in Augustus turned to Labor Code section 226.7. That statute provides that an employer shall not require an employee to work during a meal or rest period.

The court found significant the phrase “to work.” It also noted that although the ABM workers were on-call, they were also permitted to engage in non-work activities such as smoking, reading, and taking care of personal business. The court found that although the on-call status required the workers to respond in the event of calls, the workers were not required to engage in a variety of work duties such as greeting visitors, raising or lowering the flags, monitoring traffic or parking, and observing or restricting movement of persons and property while taking a break.

The court in Augustus supported its conclusion by contrasting the section of the Wage Order concerning rest periods with the section regarding meal periods. The order requires the employer to relieve the employee of all duties during meal periods, but contains no such language about rest periods. The court also noted that the order requires that only on-duty meal periods be paid, whereas all rest periods are paid.

The plaintiffs asserted that the conclusion in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, that an employer must relieve an employee of all duties during meal breaks also applies to rest breaks. The court in Augustus declined to adopt this reasoning on the basis that rest and meal breaks are qualitatively different.

The court in Augustus ultimately concluded that an employer cannot require an employee to work during a rest break, but need not relieve the employee of all duties such as to remain on-call. The court supported the distinction between work and on-call duty with several opinion letters issued by the Department of Labor Standards Enforcement. It remains to be seen whether other District Courts of Appeal, and the California Supreme Court, reach the same conclusion.

Posted by deanroyerlaw