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No On-Call Paid Rest Periods in California

December 28, 2016

California

On December 22, 2016, the California Supreme Court, in Augustus v. ABM Security Services, Inc., held that employers cannot require employees to remain on call during paid rest periods. The court reiterated the standard established in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), which clarified that during rest periods employees must be relieved of all duties and be free from employer control as to how they spend their time. However, Augustus went even further by holding that if employees are required to remain on call and available for possible interruption during the break, then it is not a true rest period nor is such a policy compliant with California law. According to the court, the mere requirement of an employee to remain available for interruption invalidates the rest period, regardless of the employee being compensated for his or her time. As a result, employers must review their current workplace policies dealing with paid rest periods and ensure employees are not required to remain on call or on duty during paid rest periods.

Realistically, rest periods may get interrupted and this interruption necessitates an employer’s remedial action. For instance, after an interruption an employer may allow the employee to restart his or her uninterrupted paid rest period. Or if the rest period is missed then, as required by law, an employer must make sure to pay the employee one hour of pay in his or her next paycheck for each workday that the rest period was not provided. The key to the Augustus decision is that employees cannot be required to remain on call. Of note, the decision does not prevent employers from requiring employees to remain on premises during paid rest periods, but rather that employees cannot be on call.

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