On January 29, 2015, the California Court of Appeal, Second District, published a landmark decision in Augustus v. ABM Security Services. Specifically, the Augustus court held that while California law prohibits employers from requiring employees to work during rest breaks, it does not require employees to relieve employees of all duty during rest breaks.
In Augustus, the trial court certified a large class of security guards in locations throughout California. The trial court then granted the plaintiffs’ class-wide motion for summary judgment, holding that no triable issue remained as to whether the defendant authorized and permitted compliant rest breaks, principally because the trial court found that each and every security officer remained on call during rest breaks. The Court of Appeal reversed the summary judgment order, but upheld the certification order.
Regarding rest breaks, the court started with the language of the wage order, which describes the timing and nature of rest breaks, but does not describe the nature of rest breaks: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”
The court then relied upon Labor Code Section 226.7, which provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period.” (Emphasis in Augustus.) The court also relied upon the fact that the wage order provision governing meal periods requires that employees be “relieved of all duty” during a meal period, but the wage order provision pertaining to rest breaks contains no such requirement. The court applied settled maxims of interpretation, reasoning as follows: “If the IWC had wanted to prescribe that an employee be relieved of all duty during a rest period, it knew how to do so. That it did not indicates no such requirement was intended.”
Bottom line: “There is no support, therefore, in the text of Wage Order No. 4, the Labor Code, or any DLSE opinion letter for plaintiffs’ claim that a rest break is valid only if the employee is relieved of all duties.” Rather, “Labor Code section 226.7, contrary to the trial court’s ruling, prescribes only that an employee not be required to work on a rest break, not that he or she be relieved of all duties, such as the duty to remain on call.”
Central to the analysis regarding class certification was that, according to the Court of Appeal, the defendant admitted it requires its security guards to keep their radios and pagers on during rest breaks, to remain vigilant, and to respond when needs arise, such as when a tenant wishes to be escorted to the parking lot, a building manager must be notified of a mechanical problem, or an emergency situation occurs.” Relatedly, the defendant “maintained throughout the certification and summary judgment proceedings that the on-call nature of a rest break for a security guard is an industry necessity.” Finally, according to the Augustus court, the defendant “never denied” at the trial court level that a uniform policy requiring security guards to remain on call during rest breaks existed.
Relying heavily on what the Court of Appeal saw as a conceded class-wide policy and practice, the court upheld the class certification order, holding that “the trial court could reasonably conclude [the defendant] possessed a uniform policy of requiring its security guards to remain on call during their rest breaks.” The Augustus court then cited Brinker for the proposition that such a policy is “eminently suited for class treatment.”