Dec. 27, 2016 California Supreme Court: Employees Cannot Be Required to Remain On-Call During Rest Breaks
Last week the California Supreme Court issued a decision holding that employers cannot require employees to remain “on-call” during legally required rest breaks. The ruling reversed a January 2015 appellate court decision.
California law has long required employers to provide most employees with a paid, uninterrupted 10-minute rest break for every work period of four hours or major fraction thereof, during which employees may not be required to work. California also requires employers to provide most employees with unpaid, uninterrupted 30-minute meal periods for work periods exceeding five hours, during which employees must be relieved of all duty.
Three security guards filed putative class actions against their employer, ABM Security Services, Inc., claiming the rest breaks provided to them were rendered invalid by ABM’s requirement that they keep their radios and pagers on, remain vigilant, and respond to calls if necessary. ABM argued that the mere requirement to stay “on-call” by itself did not render the rest breaks invalid. The trial court agreed with the security guards and awarded $89.7 million in damages to a class of more than 14,000 security guards. ABM appealed.
The Court of Appeal analyzed the issue by turning to Industrial Welfare Commission Wage Order 4, which governs the working conditions of ABM’s security guards. Although Wage Order 4 requires employees to be “relieved of all duty” during meal periods, it contains no similar language as to rest periods. The absence of any explicit language requiring employees to be relieved of all duty during rest periods led the Court of Appeal to conclude that no such requirement was intended.
A divided California Supreme Court disagreed, holding that a “rest period” means just that―a period of rest in which an employee must be relieved of all duties. The court noted its interpretation is consistent with Labor Code section 226.7, which prohibits employers from requiring “any employee to work during any meal or rest period . . . .” In other words, the court determined an employer’s responsibilities are the same for meal and rest periods: to relieve employees of all work. Therefore, the court held that state law requires employers to relieve employees of all work-related duties during a required rest break, including the duty to remain on-call.
The practical effect of the decision is that employees must be allowed to turn off radios and mobile phones during rest breaks because requiring them to be left on would mean the employee is on-call and available for work.
Keep in mind the court did not hold that rest periods may never be interrupted; it simply said employees cannot be required to remain on-call or readily available for interruption. If a rest break is interrupted or not provided, the employer must either provide a new, uninterrupted rest period within the required time frame, or pay the employee a penalty equal to one hour of pay at the employee’s regular rate.
The court did not disturb the longstanding rule that employees may be required to remain onsite or nearby during rest breaks.
What Employers Should Do
Employers should immediately review their policies and practices to ensure they are not requiring employees to remain on-call or in contact during rest breaks. This means employees must be allowed to turn off radios, mobile phones and other communication devices.
This E-Update was authored by Aaron Buckley. For more information, please contact Mr. Buckley or any other Paul, Plevin attorney by calling (619) 237-5200.