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Thursday, January 5, 2017

Augustus v. ABM Security Services: Cal. Supremes Hold that Labor Code Prohibits On-Duty and On-Call Rest Periods

Jennifer Augustus worked for ABM Security Services as a security guard. ABM required its guards to keep their pagers and radios on and to remain vigilant and responsive as needed during their rest periods. Augustus sued ABM in 2005 for violating California's rest period requirements. The trial court certified a class, granted summary judgment for Augustus, and entered judgment for $90 million. The Court of Appeal reversed, holding that the law does not require employers to provide off-duty rest periods, and moreover, "simply being on call" does not constitute performing work.

The Supreme Court reversed the Court of Appeal, holding as follows:

California law "requires employers to authorize off-duty rest periods — that is, time during which an employee is relieved from all work-related duties and free from employer control." This reading is consistent with existing law: Labor Code section 226.7, which prohibits employers from requiring any employee "to work during any rest or meal period..."; the requirement enunciated in Brinker v. Superior Court (discussed here) that employers must "relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time" during meal periods; the provision of Wage order 5 that allows employers to keep certain employees on duty during their rest periods "only in starkly limited circumstances"; and the position taken by the Division of Labor Standards Enforcement (DLSE) in a number of opinion letters.

An employer cannot "satisfy its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call." 

Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees' retention of freedom to use rest periods for their own purposes. 
Citing Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 586. 

Employers may reschedule rest periods when necessary, but may not require employees to remain on duty or on call during those rest periods. Employers who cannot relieve their employees of all duties during rest periods may either (a) provide another rest period if one is interrupted or (b) pay the premium for missed rest periods. 

Justice Mariano-Florentino CuĂ©llar, who joined the Court in January, 2015, wrote the opinion, joined by Chief Justice Cantil-Sakauye and Justices Werdegar, Chin, Corrigan, and Liu. Justice Kruger wrote separately, agreeing that employers must provide off-duty rest periods, but dissenting from the portion of the opinion holding that on-call rest periods violate the law, and arguing that the record on appeal did not support the judgment. 

The opinion is available here

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