In an important decision clarifying California’s rest period requirements, the California Supreme Court has held that nearly all employees subject to the state’s rest periods rules cannot be subject to on-call or on-duty rest periods. As the court succinctly concluded: “A rest period, in short, must be a period of rest.”

Augustus v. ABM Security Services, Inc. concerned a class action lawsuit involving security guards. The employer acknowledged that it did not relieve guards of all duties during rest breaks. It required guards to keep their radios and pagers turned on, remain vigilant, and respond when needs arose, which included escorting tenants, notifying managers of problems, and responding to emergencies. The company contended that it simply required guards to remain “on call” during rest breaks, in case something happened. The trial court found in favor of the guards, concluding that such control represented no break at all. The California Supreme Court’s decision reinstates a $90 million class action judgment, previously reversed on appeal.

During required 10-minute rest periods, the court held that “California law requires employers to relieve their employees of all work-related duties and employer control.” Of course, because the wage orders only require than an employer “authorize and permit” rest periods, an employer only has to make the opportunity to take a rest period available as required – the same as with meal periods. The employer does not have to ensure that the employee actually takes the rest period, particularly as rest break time must be paid.

In rejecting the notion of an on-duty rest period, the Supreme Court noted that the “reference to a ‘rest period’ in the wage order evokes, quite plainly, a period of rest.” It noted that the “ordinary meaning of ‘rest’ conveys, in this context, the opposite of work,” such that “a reasonable reader would understand ‘rest period’ to mean an interval of time free from labor, work, or any other employment-related duties.” Further, Labor Code section 226.7, which requires premium pay for failing to provide a rest period as required, provides that an employer “shall not require an employee to work during a meal or rest period” mandated by law.

The Supreme Court also pointed to the language of the wage orders requiring that rest period time paid – that is, “be counted, as hours worked from which there shall be no deduction from wages.” It held that this language “makes sense only if employees are relieved of duties during rest periods.” Otherwise, if employers could require employees to remain on duty, the court concluded that there would be no reason to prohibit deduction from wages during rest breaks, as “time spent performing duties would plainly require payment of wages.” The court also credited Labor Commissioner opinion letters stating the rest periods must be duty-free.

With respect to on-call rest periods, the court rejected them for similar reasons. It held that its construction of the rest period requirement “cannot be reconciled with permitting employers to require employees to remain on call.” After all, “a rest period means an interval of time free of labor, work, or any other employment-related duties.” In the guards’ case, being on-call meant having to fulfill certain duties, such as responding when the employer seeks contact with the employee and performing other work if requested. The Supreme Court concluded that “[t[hese obligations are irreconcilable with employees’ retention of freedom to use rest periods for their own purposes.” It rejected the employer’s argument that that only on-call obligations that “unreasonably” interfere with an employee’s opportunity for an uninterrupted break should be prohibited. Trying to distinguish such situations “would result in less clarity and considerably greater administrative complexities.”

The decision made clear that it did not hold that an employee never can recall an employee during a rest break. It clarified: “Nothing in our holding circumscribes an employer’s ability to reasonably reschedule a rest period when the need arises.” If an employer must call an employee off his or her rest break, the employer can restart the break in order to provide the full amount of time uninterrupted, or choose to pay the one hour of premium pay required for not providing a rest period as required. The Supreme Court cautioned that these instances should be “the exception rather than the rule,” to be used in “irregular or unexpected circumstances such as emergencies.”

The wage orders allow an employer to apply to the Labor Commissioner for an exemption from rest period (but not meal period) requirements, as the employer in Augustus had done previously for part of the time. An employer or employee may apply to the Labor Commissioner using a form requesting exemption from a wage order provision. A copy of the application must be posted at the place of employment when filed. Such requests typically result in a deputy labor commissioner visiting the worksites, as the wage order requires “due investigation.” The Labor Commissioner may grant an exemption, if the agency determines that the enforcing the rest period requirement “would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer.” Any exemption granted must be writing and are valid for one year, unless revoked.

The rest period requirements in the wage orders generally are the same. Wage Order No. 5 (public housekeeping) has a narrow exception employees with direct responsibility for children in 24-hour residential care and employees of 24-hour residential care facilities for elderly, blind, or developmentally disabled individuals. An employer may require them to maintain “general supervision” during rest periods if the employee is in sole charge of the residents. The wage order requires another rest period if an employee “is affirmatively required to interrupt his/her break to respond to the needs of residents.” None of the other wage orders has such a provision for on-duty or on-call rest periods.

Once again, employers in California should review their rest period practices to make sure they comply with current interpretations of the law.