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New rest break headache for CA employers

February 8, 2017

California law generally requires employers to provide paid rest breaks of 10 minutes for each four or so hours worked. A new case from the California Supreme Court just confirmed that “rest” means real, uninterrupted, duty-free relief — and that almost any employer imposition during that time won’t fly.

The case is Augustus v. ABM Security Services, and the opinion can be found here.

ABM provides security at residential, retail, office, and industrial sites in California. Guards are responsible for providing immediate and correct response to emergency/life safety situations and physical security for the building, its tenants and their employees.

ABM acknowledged it did not relieve guards of all duties during rest periods.

ABM required guards 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.

Plaintiff Jennifer Augustus (for herself and all her co-workers, of course) sued, claiming she (and all other ABM employees) were entitled to uninterrupted rest breaks. ABM asserted, and the Court of Appeal concluded, ABM’s “on-duty” rest breaks were permissible.

The Supreme Court disagreed. Citing both statutes (Labor Code 226.7) and wage order provisions, the Court held that uninterrupted rest breaks were required:

Our construction of [the wage order]  cannot be reconciled with permitting employers to require employees to remain on call. As we explained, a rest period means an interval of time free from labor, work, or any other employment-related duties. And employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. Given the practical realities of rest periods, an employer cannot satisfy its obligations under Wage Order 4, subdivision 12(A) while requiring that employees remain on call.

Employers need to act immediately to ensure that their handbooks, policies and procedures to comply with this new interpretation of the law. And your handbook is only as helpful as it is implemented — so train supervisors about the change and keep records showing consequences for non-compliance in action.

Employees who were forced to work “on-call” rest breaks in the past may now be entitled to additional compensation for missing those breaks.

Call your favorite employment lawyer (or yours truly) for additional information.

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From → Wage and hour

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