SACRAMENTO — Should meal breaks and rest breaks be treated
equally under California law, with employees not subject to being “on
call?” A recent ruling by the California Supreme Court says yes.
On Dec. 22, 2016 the California Supreme Court ruled
in Augustus v. ABM Security Services Inc. that “employers must
relieve their employees of all duties and relinquish any control over
how employees spend their break time.” In other words, employees
who are on a break cannot be called back to work, even though rest
breaks are compensable time.
ABM had been sued by Jennifer Augustus and other employees in a
action, claiming ABM required its employees to keep their pagers
and radios on so they could answer tenant calls even while on break.
The case originally was filed in 2005.
The court ordered that on-call rest breaks do not meet the
requirements of Labor Code section 226.7 or the Industrial Welfare
Commission Wage Orders. Also, an employer must ensure rest breaks are
provided and no work is required during that time, in the same way
that meal breaks are required under Brinker Restaurant Corp. v.
Superior Court in 2012.
The plaintiffs in Augustus eventually won more than $90 million in
damages and penalties. The court did say that employers may
reschedule a rest break, if necessary.
“The Civil Justice Association advocates for a balanced system
that treats both sides fairly,” John Doherty, president and CEO of
the Civil Justice Association of California, told The Northern
California Record. “Most of our members are folks that are getting
sued. We don’t provide legal advice to our clients; we do more
“The Augustus v. ABM Security ruling is an example of how an
unclear law can get even well-intending employers into the middle of
a very large liability risk, which then creates problematic
consequences,” he said.
Doherty feels the original rest break law needed to be clarified.
“It’s clear that the law was unclear and vague, because even
among the judges there was disagreement about how to interpret it,”
he said. “The subject of the suit — on-call rest breaks — is
not described in either the statute or the regulations. It does
provide clarity, but it increases costs and has unintended
How does Doherty think the ruling will affect employers?
“It seems clear from the reading of it that all California
employers need to make sure that they completely leave their
employees alone on their rest breaks, even to the extent that they
may not be sure where their employees are,” he said. “In many
situations, that can probably be successfully implemented, but in
other situations it’s going to be a lot more difficult and can
potentially have negative consequences.”
Doherty has not directly talked to any of his clients yet about
this particular ruling.
“There are members that feel that employment law is one of those
areas where even when you’re absolutely trying to do the right
thing, it’s very easy to get sued and be on the hook,” he said.
“I think it probably depends upon the employer as to how much of a
problem it’s going to be for them.”
The ruling is something his organization is looking at closely,
because the courts have created a liability situation that may not be
“The actions involved were certainly not malicious and not even
clearly against the law. I can’t imagine the business community is
happy about the way that all worked out,” he said.
Doherty thinks small businesses will be most affected because they
will likely have to hire more employees, to comply with the law.
Employees obviously deserve breaks, however.
“There should be a way to allow small businesses to be a little
bit more flexible than this ruling appears to allow,” he said.