California Supreme Court Rules Employers May Not Require On-Call/On-Duty Rest Periods Featured

  23 December 2016

California employers must provide employees with a work free, uninterrupted rest period for every 4 hours of work (or major fraction thereof, which is defined as 2 hours), or premium pay[1] is owed to the employee.


In Augustus v. ABM Security Services, Inc., a case involving a $90 million award against the employer for failing to provide proper rest periods to its security guards, the California Supreme Court held that during required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1038-1039 (Brinker).) The court noted, “it would be difficult to cast aside section 226.7’s parallel treatment of meal periods and rest periods and conclude that employers had completely distinct obligations when providing meal and rest periods. What makes sense instead is to infer that employers’ responsibilities are the same for meal and rest periods –– an inference that also reflects the protective purpose of both.” The court also held that, “one cannot 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.” 

In an important part of the decision for those employers who require employees to remain onsite for rest periods, the court addressed “employer control” holding that “[b]ecause rest periods are 10 minutes in length…they impose practical limitations on an employee‘s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain onsite or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control” [emphasis added]. Employees must, however, be allowed to leave the employer’s premises during the meal period. In holding for the employee-plaintiffs, the court concluded by stating, “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods. Employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties –– including the obligation that an employee remain on call. A rest period, in short, must be a period of rest.” 
In reviewing whether on-duty rest periods may be required for certain positions (similar to on-duty meal periods) the court concluded that “The absence of language in subdivision 12(A) authorizing on-duty rest periods proves far more important than any language in Wage Order 4. The IWC could have allowed on-duty breaks and did so in subdivision 11(A). Its failure to do so in subdivision 12(A) is a telling indication it did not contemplate on-duty rest periods more generally. This is the best interpretation not only because we construe wage order provisions in favor of employees and avoid creating exceptions by implication... Subdivision 4(A) requires every employer to pay to each employee wages for all hours worked. When there is an on-duty meal period, the employee gains something –– wages –– he or she would not have received otherwise. But when forced to take on-duty rest periods, an employee essentially performs . . . ̳free work, i.e., the employee receives the same amount of compensation for working through the rest periods that the employee would have received had he or she been permitted to take [off-duty] rest periods.”
As the Augustus case demonstrates, failure to provide rest periods can result in significant damages owed to employees. Employers should therefore consider implementing appropriate procedures to ensure that if an employee alleges a rest period violation, the employer can prove that the employee took his or her rest period as required, since the employee may claim that the employer somehow impeded the employee’s ability to take his or her rest period/s. Because rest periods are paid, most employers do not have a record of a “clock in and out.” This becomes problematic if an employee alleges that an employer required the employee to work through the rest period or to take a delayed rest period. 

[1] “Premium pay” refers to one hour of straight time pay.