By Sweta Patel

Happy Holidays from the California Supreme Court!  On December 22, the Court in Augustus-v.-ABM-Security issued a ruling on whether 1) employers are required to permit employees to take off-duty rest periods under Labor Code section 226.7 and 2) whether employers may require their employees to remain on-call during rest periods. The Court held that on-duty and on-call rest periods are prohibited because “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”
In Augustus, a security guard company, provided rest periods to its security guards. The Court found that the company did not relinquish all control over the guards during rest periods as the guards were “required to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.” The Court reasoned that “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 10-minute rest periods.”

The takeaway from the Supreme Court’s decision is that California employers cannot have policies requiring employees to remain on-call during their rest breaks. Employers should review their policies to determine whether the requirements imposed on employees during breaks creates on-call breaks. There is no black and white rule as to what constitutes an “on-call break.” For instance, “a requirement that employees remain reachable (by portable communications device or otherwise) is not ‘work’ for purposes of the wage-and-hour laws.” Please feel free to contact us if you need assistance in ensuring that your company polices do not require “on-call” or “on-duty” rest breaks in light of the recent California Supreme Court decision.

** As a practical matter, there may be times when an employee’s break is interrupted or missed due to work demands. If this happens, then the employer must pay the employee one hour of pay for the missed break or, in the case of an interrupted break, allow the employee to re-start their rest break once the interruption is completed.