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California Court of Appeal Rules that On-Call Rest Breaks are Permissible

February 12, 2015

On December 14, 2014, in Augustus v. ABM Security Services, Inc., 2014 Cal. App. LEXIS 1209, the California Court of Appeal, Second Appellate District, reversed a $90 million judgment in favor of a class of security guards.  The issue in the case was whether the security guards were entitled to compesation because the employer required them to remain on call during their rest breaks.  While the court recognized that the applicable wage order requires that "every employer shall authorize and permit all employees to take rest periods," because California Labor Code section 226.7 only requires that "an employer shall not require an employee to work during a meal or rest period," the court held that the facts that the employer required the class of security guards to remain on call on the company's premises for rest breaks, to keep their radios and pagers turned on during their rest breaks, and to remain vigilant and respond when needs arise during the rest breaks, were irrelevant.  These facts were of no import according to the court because it held that on-call rest breaks are permitted.  The court opined that it did not matter that the security guards remained under the control of the employer for their rest breaks, and that the definition of "hours worked" under the Labor Code, which expressly includes "the time during which an employee is subject to the control of an employer," did not apply to rest periods, as this defintion applies to the noun "work," not the verb "work," only the later of which the court held section 226.7 prohibits.  Stating its position in stark terms, the court held that "section 226.7 does not require that a rest period be distinguishable from the remainder of the workday," and expressed the opinion that the IWC "implies rest periods are normally taken while on duty, i.e., while subject to employer control."  The fact that the DLSE opined in 2002, consistent with common understanding, that "rest periods must be, as the language implies, duty free," was of no moment for the court.  Given this analysis is a departure from the normal understanding of an employer's obligations with respect to rest periods, and would seem to eradicate the notion of rest breaks, one expects that review will be sought from the California Supreme Court.