Incredibly, this rule applies even if the on-call employee in fact took an uninterrupted rest break and regardless of whether the on-call policy actually interfered with any of the guards’ ability to take their rest breaks. As the dissent points out, the evidence offered by ABM at the trial level tended to show that the policy did not interfere with the guards ability to take interrupted breaks, and there was no even evidence of guards being called off their breaks. If that is the case, it is difficult to understand how the majority concluded that the employer’s policy prevented employees from taking short walks or pumping breast milk. My favorite quote from the case is by the dissent: “In a marked departure from the approach we have taken in prior cases
concerning whether on-call time counts as work, and in sharp contrast to the
DLSE‘s views about what constitutes a duty-free break, the majority in this case
appears to conclude that a requirement to remain reachable by pager, phone, or
other portable communications device, without more, is inherently incompatible
with the requirement to provide a duty-free rest period — even if the pager never
sounds or the phone never rings.” I added the emphasis.
No Rest for Employers
Augustus v. ABM Security, 12/22/16, Cal SC
The California Supreme Court has upheld the trial court’s $90 million summary judgment in favor of the security guards against their employer, ABM, over its rest break policy. ABM had an explicit policy that required its security guards to be on-call during their 10-minute rest breaks, and required the security guards to carry pagers or radios in case there was an emergency. The primary issue before the Court was whether an employer satisfies its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on-call. The Court answered, No — An employee who is on-call during a rest break has not received a proper rest break and is entitled to an additional hour’s wage under Labor Code section 226.7.
And so this case has broad application and creates risks far beyond employers who explicitly require their employers to remain on-call during their rest breaks. The key fact in the case was that guards were required to carry pagers or radios during their rest breaks, and were also required to respond to incidents during their rest breaks. Many employers have practices that in fact amount to the same thing. I am sure that future cases will attempt to apply this new rule to employers whose employees are simply required to keep their pagers or radios with them during their rest breaks.