California Supreme Court Holds On-Call Rest Breaks Are Unlawful

On December 22, 2016, in Augustus v. ABM Security Services, Inc., the California Supreme Court held that California law prohibits on-duty and on-call rest periods. The decision reinstated a Los Angeles Superior Court decision awarding approximately $90 million in damages to several security officers who filed a class action suit alleging that the company failed to provide uninterrupted rest periods as required by law.

ABM Security Services employs thousands of security guards in commercial, industrial, and office environments throughout California. It is the primary responsibility of guards to provide an immediate and correct response to emergency/life safety situations and provide physical security for the building, its tenants, and their employees by observing and reporting all unusual activities. 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.

In 2005, several guards filed a class action suit in Los Angeles Superior Court alleging that the company failed to provide uninterrupted rest periods as required under state law. During pretrial discovery the company acknowledged that it required guards on rest periods to keep their radios and pagers on, “remain vigilant,” and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The trial court granted summary judgment for the security guards holding that the company’s on-call requirement violated California Labor Code and Wage Order as a matter of law and awarded the plaintiffs approximately $90 million in statutory damages, interest, and penalties. The company appealed and the 2nd District Court of Appeal reversed, reasoning that that law does not require rest periods to be “off duty” and that simply being “on call” does not constitute actual work.

The California Supreme Court granted review to address the following two issues:

  • Whether employers must permit off-duty rest periods — that is, time during which an employee is relieved from all work-related duties and free from employer control — under California law; and
  • Whether employers may require employees to remain on call during rest periods.

With regards to off-duty rest periods, the court examined the legislative history of Cal. Labor Code § 226.7 and applicable Wage Orders, as well as the California Supreme Court decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), concluding that during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.

As for whether employers may require employees to remain on-call during rest periods, the court concluded that an employer cannot satisfy their obligation to relieve employees from their duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call.

Read the Decision