In 2012, the California Supreme Court issued its highly-anticipated opinion in Brinker Restaurant Corporation, et al. v. Superior Court, 53 Cal. 4th 1004, which provided substantial clarity to California employers regarding the obligation to provide meal and rest breaks. While Brinker’s holding that employers need only make such breaks “available” to employees rather than “ensure” they are taken, it left a number of questions unanswered. One open issue was whether employees must be “relieved of all duty” during paid rest breaks. On January 29, 2015, the California Court of Appeal, Second District, published a landmark decision in Augustus v. ABM Security Services holding that employees are not “working” while on-call during rest breaks.
The case began 10 years ago when three security guards filed suit against ABM Security Services, Inc. (“ABM”), alleging that their employer’s policy of requiring guards to remain on-call during their rest breaks violated California law. ABM conceded that it requires security guards to keep their radios and pagers on during rest breaks and remain vigilant and ready to respond in case of an emergency. The Plaintiffs contended that given these requirements, the rest breaks provided by ABM were indistinguishable from normal security work and, therefore, every rest break was invalid.
In 2010, Plaintiffs moved for summary adjudication on the rest break claim without presenting any evidence that any guard’s rest break had actually been interrupted by work. ABM, on the other hand, presented substantial evidence (including deposition testimony from the named Plaintiffs) that security guards regularly took uninterrupted rest breaks during which they performed no work and engaged in leisure activities such as smoking, reading, and surfing the internet. Notwithstanding such evidence, the trial court granted summary adjudication for the Plaintiffs.
In 2012, Plaintiffs moved for summary adjudication on their damages claim, contending that ABM owed each security guard an additional hour of pay, waiting time penalties, and interest for “every single rest break taken by every single class member, for the duration of the Class Period.” The trial court issued a tentative ruling stating, “if you are on call, you are not on break” and issued an award in favor of the class for over $55 million in damages, $31 million in pre-judgment interest, $2.5 million in penalties, and over $30 million in attorney fees. ABM appealed the judgment.
On December 31, 2014, the Second District Court of Appeal concluded that the trial court was incorrect. The Court disagreed with the trial court’s view of the nature of rest breaks under California law, holding that employers are not required to relieve employees of all duty during their rest breaks. In so holding, the Court examined the meal and rest break provisions of the Wage Orders and the Labor Code. Labor Code section 226.7 provides: “An employer shall not require an employee to work during a meal or rest or recovery period.” The Court contrasted this language with the meal period provision in the Wage Orders, which requires that an “employee be relieved of all duty” during a meal period. The Court noted that the Wage Order did not contain similar language for rest breaks, which in its view, implied that employees are not required to be relieved of all duty during rest breaks. The Court also noted that rest breaks, unlike meal periods, are paid. Accordingly, the Court concluded that simply being on-call does not constitute “work.” The Court reversed the trial court’s 2010 and 2012 orders including the $90 million award and the attorneys’ fee award.
We will keep our eyes on what happens with the matter going forward and with regard to a further appeal to the California Supreme Court. For now, the ABM Security decision is a clear victory for employers, and particularly those in industries where it is necessary for employees to remain on-call during rest breaks.