California Employers May Not Require “On-Call” Rest Breaks

California businesses have a well-established duty to provide their employees a “net” ten-minute paid rest break for every four hours worked, or major fraction thereof (i.e., anything more than two hours of work). (“Net” here means the time an employee spends reaching and returning from his/her rest area does not count in the ten minutes.) For each workday an employer violates this rule, it must pay each affected worker one additional hour of pay at that employee’s regular rate. See, Employee Meal Periods and Rest Breaks (September, 2016).

However, it has been uncertain whether management could maintain policies requiring workers on such breaks to remain “on-call” for any urgent, earlier return to the job. The California Supreme Court has recently decided such on-call obligations or standard practices are unlawful.

In Augustus, et al. v. ABM Security Services, Inc., security guards claimed their employer violated state law – and thus owed the above additional hours of pay — by requiring them to keep their pagers and radio phones on during rest periods. Even though the guards presented no evidence that any of them actually had rest periods interrupted, ABM lost a $90 million judgment because these workers had to “remain vigilant, and respond when needs arose…” during such breaks.

The California Supreme Court has now upheld that decision, concluding that “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods… A rest period, in short, must be a period of rest.” The rest periods must be uninterrupted, and the employer must relinquish any control over how employees spend their break time. Although the court recognized that employers may reasonably reschedule or restart a rest period when occasional unforeseen emergencies intervene, businesses cannot require “on-call” as a policy or regular practice.

Employers should thus consider the following best practices:

• Distribute updated rest period policies to all California employees confirming this point.

• Ensure managers do not require workers to remain on-call during rest periods.

• Pay an employee the one hour additional wages for any rest periods management cannot provide due to the press of business.

• Consider requiring each employee to periodically attest in writing that: (i) management provided him/her full opportunity to take all rest breaks; and (ii) if he/she missed any breaks due to unavoidable operational circumstances, he/she reported this to management and received the extra hour of pay as a result.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

June 19, 2017