In a recent decision that raises significant liability risks for employers, the California Supreme Court held in Augustus v. ABM Security Services, Inc. (December 22, 2016) 2 Cal.5th 257, that California law prohibits employers from requiring employees to remain on-call, or otherwise on duty, during legally required rest breaks.
As background, ABM Security Services (“ABM”) employed thousands of security guards at sites throughout California. ABM required those guards to carry pagers or phones during their rest breaks and remain “vigilant” or on-call during that time in case of emergency or other business need. Jennifer Augustus filed a class action in 2005 alleging that ABM failed to provide rest periods compliant with state law. In 2010, the trial court agreed with Augustus and awarded the plaintiffs $90 million in damages. In 2014, the Court of Appeal reversed the lower court’s decision.
The California Supreme Court has now reversed the Court of Appeal and held that, to have legally compliant rest breaks, employees must be completely relieved of all duties, and the employer must relinquish all control over the employees, during those breaks. Employees cannot be required to carry portable communication devices or otherwise make arrangements with the employer so the employee can be reached during a break, nor can the employee be required to remain available or vigilant during breaks. Employees must also be free to leave the premises during their breaks, and the breaks cannot be interrupted.
The Supreme Court concluded that employers who find it burdensome to relieve their employees of all duties during rest breaks have “several options,” including rescheduling the rest period to another time within that which is legally required, or paying one hour of premium pay to an employee to cover the missed rest period. This one hour of premium pay applies to each employee and to each day that a rest period is not provided in a manner compliant with law. The Supreme Court also suggested that employers could seek an exemption from the DLSE from duty-free rest period requirements as provided in the Wage Orders (which would not be retroactive and could possibly trigger an audit but could potentially be advisable for a particular employer).
The Augustus decision should be of immediate interest to employers who employ or contract with security personnel who have been expected to remain accessible and available during rest breaks. While the Augustus decision specifically discussed security guards and rest breaks, it seems highly likely that the principles announced in the decision will apply equally to meal periods and to other employment classifications.
Employers should closely evaluate their meal and rest break policies and practices and ensure they are compliant with law as it now stands and do not, in any way, require employees to remain on call or vigilant during breaks or engage in any of the other activities prohibited by the California Supreme Court. Those employers whose employees, due to the nature of the work, must remain on call during breaks, should contact employment counsel to determine the best available options to limit potential liability under the circumstances, as well as consider those options listed by the California Supreme Court. If you have any questions about the Augustus decision, or how it affects your business in particular, please contact your Musick Peeler attorney, or any of our employment attorneys.