California Supreme Court clarifies rules on employee rest breaks

By Dee Thompson | Jan 20, 2017

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.

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 class 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 advocacy.”

“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 consequences.”

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 warranted.

“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.

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