On December 31, 2014, a California Court of Appeal unanimously reversed a $94 million judgment against a security firm which had required its security guards to carry their radios and remain "on-call" during the guards' paid ten minute rest breaks. The appellate court ruled that the rest break law does not forbid California employers from requiring employees to remain "on call" during the employees' state mandated rest breaks. One word of caution. Since the decision is currently "unpublished", it cannot be used in another case as binding precedent.  

     In Augustus  v. ABM Security Services Inc., a class of security guards brought a wage-and-hour class action alleging that they were consistently deprived of their state mandated uninterrupted 10-minute rest breaks simply because they were required to keep their radios switched to "on", and to remain ready to respond to calls and to actually respond when needed. 

     The guards all signed valid on-duty meal agreements, so meal breaks were not at issue. However, the employees argued that since the state's Wage Orders do not include provisions authorizing so-called "on-duty" rest breaks, they were effectively still "on duty" and thus deprived of a true rest break by requiring them to keep their radios switch "on". The guards made these arguments (and the trial court agreed!) despite evidence that many security guards engaged in personal activities while on their rest breaks, and were rarely actually interrupted during their breaks. The trial judge ruled in favor of the employees, and awarded them a whopping $94 million judgment.

     The Court of Appeal disagreed. It noted that while California law prevents employers from requiring employees to work while on meal or rest breaks, simply remaining available for work (i.e., being "on-call") is not the same as actually working. Even though ABM employees were on-call, they also engaged in various non-work activities, such as smoking, reading, making personal phone calls, and surfing the internet. The Court of Appeal held that on-call rest breaks are permissible under California law, and vacated the damages award.

     It is unclear if the Court's rationale would extend to situations where, for example, employees are required to carry a radio and leave it "on" during meal breaks if the other stringent requirements for an "on-duty" meal break cannot be satisfied. The Court's decision relied, at least in part, on differences between the way rest breaks and on-duty meal breaks are addressed in the Wage Orders. The Court reasoned that this difference in wording was evidence that the Industrial Welfare Commission intended that being "on-call" during a rest break is permissible. The Court also found it significant that employees are paid during rest breaks, whereas meal breaks can be unpaid. As such, it is still risky to require employees to carry radios and leave them in the "on" position during meal breaks. The most prudent approach would be to permit employees to turn off their radios, pagers, mobile phones and the like during their meal breaks.

     All of us here at BRG&S hope you are having a great start to the new year. If you have any questions about this article, please call your contact at the firm.  We are reachable at 818-508-3700 or at www.brgslaw.com.