CA Supreme Court Holds Employers Cannot Require Employees to be “On-Call” During Legally Required 10-Minute Rest Breaks and Affirms $90 Million Judgment Against Security Company

A few weeks ago, the California Supreme Court in Augustus v. ABM Security Services, Inc. affirmed a $90 million judgment in favor of a class of more than 14,000 security guards, finding that their employer failed to provide legally compliant 10-minute rest breaks where the guards were required to remain “on call” during their breaks – they needed to keep their radios and pagers on, remain vigilant, and respond when needs arose. The court held that these requirements posed a “broad and intrusive degree of control” over the employees such that they were unable to take the duty-free breaks required by law.

By way of background, California law entitles non-exempt employees to take periodic 10-minute paid, duty-free and uninterrupted rest breaks throughout the workday. Employers who fail to permit employees to take these breaks must pay a penalty of one hour of pay for each day that a legally compliant break is not provided.

In Augustus, the court said, “An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond.  Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk or completing a phone call to arrange child care.”  Ultimately, the court stated that California’s rest break obligations require employers to relieve their non-exempt employees of all work-related duties and employer control or otherwise be subject to penalties, as in the case of ABM.

This ruling should come as a wake-up call to employers who require their non-exempt employees to be on-call during breaks.  At a minimum, employers should not require non-exempt employees to respond to cell phones, pagers, radios, or other communications devices during breaks or otherwise require employees to be available at a moment’s notice.  Employers should also revise their handbooks or other employment policies to memorialize the fact that employees need not be on-call during rest breaks.  For assistance with this or any other employment-related matters, please feel free to reach out to Polina Bernstein or Diana Friedland at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

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