No On-Duty/On-Call Rest Periods for CA Workers 11:28, January 30, 2017

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No On-Duty/On-Call Rest Periods for CA Workers

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The California Supreme Court has decided that under California law, employers may not require employees to remain on duty or on call during rest periods. Instead, employers must relieve employees of all duties and relinquish control over how employees spend their break time.

In the case before the Court, ABM Security Services guards claimed that they weren’t getting their state-mandated rest periods because ABM required them to keep their pagers and radio phones on. The guards had to remain vigilant and respond to calls to do work such as escorting building tenants to the parking lot, notifying building managers of mechanical problems, and responding to emergency situations.

The security guards won their initial case in court and were awarded a $90 million judgment that included one-hour rest period premiums for each of the over 14,000 guards in the class action, for each day that a valid rest break was not given. But the court of appeal reversed that decision.

On-Duty Rest Periods

In reversing the lower court’s original decision in favor of the security guards, the court of appeal noted that California law specifically states that employees must be “relieved of all duty” during meal breaks. Because that language is not included in the law concerning the shorter rest breaks, for which employees must be paid, the court of appeal concluded that there was no off-duty requirement for rest periods.

The California Supreme Court disagreed, ruling that the most common understanding of a “rest period” is a period of time free from labor, work, or any other employment-related duties. The Court went on to say that:

Indeed, [the notion of] a rest period during which an employer may require that an employee continue performing duties seems to place too much semantic emphasis on “period” –  and too little on “rest.”

On-Call Rest Periods

Neither the California Labor Code nor Wage Order 4, which applied to the employees in this case, discuss on-call rest periods. Nonetheless, the Court held 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.”

In addition, California has demonstrated its ability to allow on-call rest periods. Wage Order 5 authorizes on-call rest periods for employees responsible for children and elderly, blind, or developmentally disabled adults in residential care facilities. The absence of this language in Wage Order 4 (applicable in this case) and other wage orders indicates that the on-call rest period exception should be interpreted very narrowly.  

Two judges disagreed with the court’s holding that ABM’s on-call requirements were incompatible with an employer‘s obligation to provide off-duty rest periods under California law. Those judges would have sent the case back to the trial court to determine whether ABM’s policy actually interfered with the guards’ ability to use their rest periods for their own purposes.

Steps Employees Can Take When They Recall Employees from Breaks

Addressing concerns that its ruling would harm employers who would find it “especially burdensome” to relieve their employees of duties during rest periods, the Court reminded employers that they can:

  •         give employees  another rest period to replace one that was interrupted
  •         pay the one-hour penalty for each day the rest period was not provided
  •         request an exemption from the California Division of Labor Standards Enforcement, as ABM had done previously (receiving two one-year exemptions)
    .

But the Court noted that interrupting rest breaks “should be the exception rather than the rule, to be used when the employer –– because of irregular or unexpected circumstances such as emergencies –– has to summon an employee back to work.” As we’ve noted before, employers should examine their staffing and policies when they find that employees are routinely working through breaks and outside their scheduled work hours.

Although employers can recall employees in an emergency, they should make sure that their policies reflect, and their employees understand, that employees are generally relieved from duty during rest breaks. As the Dentons Employment and Labor Group stated, “In the case of ABM, it was the requirement for the employee to remain in contact, vigilant and ready to respond during the break that set the ABM policy apart and conflicted with rest break requirements.”

As for on-call requirements, Warren F. Hodges of Kennaday Leavitt Owensby advised that: “Employers whose employees carry communication devices for the performance of their job duties should draft and enforce policies advising that employees need not carry or respond to those devices during breaks.”

Simply rewriting rest break policies isn’t enough; the policies must be effectively implemented. Employers must also make sure that managers enforce company policy and are aware of the penalties for failing to follow it. Making sure that employees get paid for their work is a hot topic for state and federal enforcement agencies; no one is immune from this compliance challenge.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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