California law requires most employers to authorize paid rest breaks for non-exempt employees of at least 10 minutes for each four hours worked or a major fraction thereof, and to provide this rest break approximately mid-way through each work period if practicable. In its highly-publicized 2012 decision in Brinker Restaurant Corp. 53 Cal. 4th 1004 (2012), the California Supreme Court made clear that denial of one or more rest breaks in any workday entitles an employee to a statutory one-hour penalty payment. An unanswered question in Brinker was whether employers could require employees to be on-call, or could otherwise restrict their movement or activities, during rest breaks. Now, in Augustus, et al. v. ABM Security Services, Inc., S224853 (December 22, 2016), a split California Supreme Court has ruled that in order to be compliant with state law, a rest break must be free of compulsion to “remain at the ready, tethered by time and policy to particular locations or communications devices.”

The case involved security guards who were required to wear pagers or beepers during rest breaks, and to be prepared to respond to emergencies or other urgent security issues while on break. If a guard responded to a page or call and the rest break was actually interrupted, the guard was either given a replacement break or paid the one-hour penalty. The issue before the Court was whether guards were denied a rest break when they did not receive a page or call, and were not required to respond to a security need during a break. The Court ruled that except where an express exemption exists under an applicable wage order or had been provided by the Division of Labor Standards Enforcement (DLSE), rest breaks must be wholly “off-duty,” and that “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” The Court ruled that requiring employees to remain on-call during a rest break was inconsistent with this requirement and therefore violated state law.

This decision leaves few options for those employers who are obligated to provide rest breaks and who must require employees to remain on-call or be readily available at all times throughout a shift. Options include:

  • Schedule relief coverage for employees during rest breaks, and clarify that break policies do not require employees to be on call while on break even though an employee may be carrying a communications device.
  • Reschedule a rest break when an employee on break is interrupted.
  • Pay the one-hour penalty for a missed rest break when an employee is required to be on-call or is interrupted and no replacement break is scheduled.
  • Seek an exemption from the DLSE. Under certain wage orders, the DLSE is permitted to grant an exemption where the employer can demonstrate that providing an on-duty rest break “would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer.” Employers who think they may qualify for an exemption should consult with legal counsel.

All employers should carefully review their policies and handbooks to ensure they are compliant with the Court’s ruling. Supervisors should also be trained to provide breaks in accordance with legal requirements, including that no work is expected or is performed. We anticipate that questions will arise as to how best to manage rest breaks in specific work places and specific situations. Employers are encouraged to consult counsel on these issues.

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.