In contrast to the California Supreme Court’s ruling in Mendiola, a California appeals court in Augustus v. ABM Security Services, Inc. held that security guards who were “on-call” during rest breaks did not violate the California Labor Code’s rest period requirements.

Augustus was a class action lawsuit brought by former non-exempt security guards of ABM, who alleged that ABM’s requirement that they keep their pagers on and remain vigilant and respond when needs arise during paid rest breaks violated Labor Code 226.7’s requirement that they be free from “work” during the rest periods. The plaintiffs principally sought labor code penalties as their remedy. The court determined that being on-call during a rest period—during which time the employee could engage in various non-work activities such as smoking, reading, making personal calls and browsing the Internet—did not constitute working, and that plaintiffs offered no evidence that anyone’s rest period had ever been interrupted. The court further noted that unlike the meal break law, which requires that employees be relieved of all duties during a meal period, the rest period law contained no similar requirement.

The court also found that its decision was consistent with the California Supreme Court’s decision in Mendiola, which acknowledged that remaining available to work was not equivalent to actually performing work.