California employees taking a rest period break can’t be required to remain ‘on call’

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By Joy Waltemath

By Ronald Miller, J.D.

During employee rest period breaks, employers must relinquish any control over how employees spend their break time, and relieve them of all duties—including the obligation that an employee remain “on call,” ruled the California Supreme Court. The state high court found no support for an employer’s argument that the Industrial Welfare Commission (IWC) created through its wage orders a default presumption that employers could impose duties on employees during their rest periods. Justice Kruger, joined by Justice Corrigan, filed a separate opinion concurring in part and dissenting in part (Augustus v. ABM Security Services, Inc., December 22, 2016, Cuellar, M.).

“On call” during rest breaks. The employer employs thousands of security guards at various sites. The guards’ primary responsibility is to provide immediate response to emergency situations, and physical security for buildings and other worksites, their tenants, and their employees. Specific duties may include patrolling sites, responding to emergencies, identifying and reporting safety issues, providing escorts to parking lots, greeting and assisting tenants and visitors, monitoring and restricting access to sites, directing vehicular traffic and parking, monitoring and occasionally either restricting or assisting in moving property into and out of sites, making reports, and hoisting and lowering flags.

In consolidated class actions, the employees alleged the employer failed “to consistently provide uninterrupted rest periods” as required by state law. During discovery, the employer acknowledged it did not relieve guards of all duties during rest periods. In particular, the employer required the employees to keep their pagers and radio phones on and to remain vigilant and responsive to calls when needs arose. The employees moved for summary adjudication on their rest period claims. The trial court granted summary judgment for the employees, but the Court of Appeal reversed, finding that “simply being on call” does not constitute performing work.

Off-duty rest periods. Under California law, employers are required 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. Wage Order 4, subdivision 12, provides that “every employer shall authorize and permit all employees to take rest periods.” However, the appeals court noted that subdivision 12(A) “does not describe the nature of a rest period,” while subdivision 11(A) requires employees be “relieved of all duty” during meal periods. Consequently, the appeals court inferred that the absence of language requiring that employees be “relieved of all duty” meant that “no such off-duty requirement was intended” for rest periods.

Rejecting the appeals court’s inference, the California Supreme Court observed that neither Wage Order 4, subdivision 12(A) nor any other provisions in the wage order leads to a conclusion that the term “rest period” is imbued with a distinctive, unconventional meaning.

On-duty rest periods. Rather, a reasonable reader would understand “rest period” to mean an interval of time free from labor, work, or any other employment-related duties. Moreover, this reading of the wage order was also most consistent with Section 226.7 of the California Labor Code. That statute prohibits employers from “requir[ing] any employee to work during any meal or rest period . . . .” The high court explained in Brinker Restaurant Corp v. Superior Court of San Diego County, that during meal periods, employers must “relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.”

Further, if employers could require employees to remain on duty during breaks, there would be no reason for the IWC to prohibit deduction of wages for rest periods; time spent performing duties would plainly require payment of wages. Noting that the IWC has authorized on-duty rest periods only in strictly limited circumstances, the high court concluded that IWC’s purpose was not to create an exception to the obligation imposed by subdivision 12(A) and section 226.7. Thus, the court found no support for the employer’s argument that the IWC created through its wage orders a default presumption that employers could impose duties on employees during their rest periods.

On-call rest periods. The California Supreme Court next considered whether an employer can satisfy its obligation to relieve employees from duties, but nonetheless require its employees to remain on call. It answered that question in the negative. While neither Wage Order 4 nor Section 226.7 mentions on-call time, the court nonetheless concluded that it could not 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.

A rest period means an interval of time free from labor, work, or any other employment-related duties, explained the court. As a consequence, employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. Because rest periods are 10 minutes in length, they impose practical limitations on an employee‘s movement. This constraint is not sufficient to establish employer control. But add the constraints imposed by on-call arrangements so the employer can reach the employee during a break, and such obligations are irreconcilable with employees’ retention of freedom to use rest periods for their own purposes. Accordingly, the judgment of the Court of Appeal was reversed.

Partial concurrence and partial dissent. In a partial dissent opinion, Justice Kruger agreed with the majority that employers must provide off-duty rest periods to nonexempt employees under Wage Order 4 and Labor Code Sec. 226.7. However, because Justice Kruger felt the bare requirement that the employee carry a radio, phone, pager, or other communications device in case of emergency does not constitute “work,” he disagreed that such “on call” requirements, without more, are incompatible with an employer’s obligation to provide off-duty rest periods under California law. Thus, the dissent argued that there was not enough information to conclude that the particular on-call policy prevented members of the class from using their rest breaks for their own purposes.

Source:: Employment Law Daily Newsfeed


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