Augustus v. ABM Security: Court of Appeal Addresses On Call Rest Periods

In Augustus v. ABM Security Services, Inc., --- Cal.App.4th --- (1/29/2015), the plaintiff, Augustus, worked as a security guard for the defendant, ABM. Augustus filed a putative class action, alleging that ABM failed to authorize and permit rest periods by requiring the its security guard employees to be on call during rest periods. The trial court certified the class, granted summary judgment for the class, and entered judgment for more than $90 million. The Court of Appeal affirmed the order granting class certification, but reversed the judgment for the class.

On class certification, the Court found that Augustus presented evidence of "a uniform policy requiring employees to remain on call during rest breaks." The Court noted that ABM did not deny in the trial court that it had such a policy, then held that whether such a policy is permissible is an issue "eminently suited for class treatment."

On the merits, the Court held that the Wage Order does not define the nature of a rest period, but Labor Code section 226.7 states that an employer shall not "require any employee to work during a meal, rest, or recovery period." The question then became whether being on call requires an employee "to work" during his or her rest period.

The Court then held that "to work" means to exert one's self physically or mentally. Merely being on call does not require an employee to exert himself or herself. "In other words, [section 226.7] prohibits only working during a rest break, not remaining available to work."

The Court contrasted section 12 of the Wage Order (rest periods) to section 11 (meal periods), which requires an employer to relieve its employees of all duty during their meal periods. The Court held that this means that an employer need not relieve employees of all duty during their rest periods. "If the IWC had wanted to relieve an employee of all duty during a rest period, including the duty to remain on call, it knew how to do so."

The Court rejected arguments that Brinker v. Superior Court (discussed here), Faulkinbury v. Boyd and Associates (discussed here), Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, or a 2002 DLSE opinion letter changed this result. None of these authorities, the Court held, addressed the issue before the Court here: whether the law allows an on-duty rest period. 

The opinion is available here.