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

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By Ron Miller

ABM Security Services employs thousands of security guards at various sites, including sites in California. 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.

“On call” during rest breaks. Guards employed by the company in California brought suit alleging that it failed “to consistently provide uninterrupted rest periods” as required by state law. During discovery, the employer acknowledged it did not relieve its guards of all duties during rest periods. Specifically, the employer required the guards to keep their pagers and radio phones on and to remain vigilant and responsive to calls when needs arose.

Ultimately, the dispute made its way to the California Supreme Court in Augustus v. ABM Security Services, Inc., after an appellate court found that “simply being on call” did not constitute performing work. The California high court ruled that 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.”

On-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.” The state high court noted that 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. 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.”

Accordingly, the court concluded that an employer can not satisfy its obligation to relieve employees from duties, but nonetheless require its employees to remain on call. Thus, the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, does not square with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.

Source:: Employment Law Daily Newsfeed


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