Why it matters

Ruling in a closely watched case, the California Supreme Court declared that on-duty and on-call rest periods violate state law. "During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time," the court wrote. The dispute began when security guards at ABM Security Services sued their employer for failing to provide rest periods as mandated by state law because the workers were required to keep their pagers and radio phones on and respond to calls during their rest periods. A $90 million award by the trial court was reversed by an appellate panel, and the state's highest court agreed to consider whether employers must permit their employees to take off-duty rest periods and whether employers may require workers to remain on call during rest periods. Finding on-call rest periods impermissible, the court said employers must provide employees with off-duty rest periods where they are relieved of all duties. "[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods," the court concluded.

Detailed discussion

Several security guards at ABM Security Services filed suit against their employer, alleging that the company failed to provide the rest periods employees are entitled to receive under California state law. Because ABM required the guards to keep their pagers and radio phones on and to remain vigilant and responsive to calls when needs arose, the guards never truly received a break, they argued.

The employer countered that if it required anything at all during rest periods, it was merely that the workers remain on call just in case an incident required a response. ABM also offered evidence that guards regularly took breaks uninterrupted by service calls. But a trial court granted summary judgment in favor of the plaintiffs, reasoning that a rest period subject to such control was indistinguishable from the rest of a workday, awarding approximately $90 million in statutory damages, interest, and penalties.

An appellate panel reversed, holding that state law does not require employers to provide off-duty rest periods and that simply being on call did not constitute performing work.

The California Supreme Court then granted review to address two related issues: whether employers are required to permit their employees to take off-duty rest periods under Labor Code Section 226.7 and Industrial Welfare Commission (IWC) Wage Order No. 4-2001 and whether employers may require their employees to remain "on call" during rest periods.

The conclusion: "[S]tate law prohibits on-duty and on-call rest periods," the court wrote. "During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time."

In 1932, the IWC started requiring employers to give employees rest periods, the court noted, and since then, even as the agency has revised its wage orders, "the rest period obligation remained unchanged." Looking to the language of Wage Order 4 itself, the court said the reference to a "rest period" evoked "quite plainly, a period of rest," which "in this context [conveys] the opposite of work."

This reading is the most consistent with Section 226.7, the court added. "We have explained that during meal periods, employers must 'relieve the employee of all duty and relinquish any control over the employee and how he or she spends the time,' " the California Supreme Court wrote. "It would be difficult to cast aside section 226.7's parallel treatment of meal periods and rest periods and conclude that employers had completely distinct obligations when providing meal and rest periods."

The absence of any language authorizing on-duty rest periods spoke louder than language prohibiting it, the court said, because an employee forced to take on-duty rest periods essentially performs free work for the employer, receiving the same amount of compensation that he or she would have if permitted to take an off-duty rest period.

The court then determined that employers cannot satisfy this obligation by requiring employees to remain on call during the rest period.

"[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods," the court said. "[A] rest period means an interval of time free from labor, work, or any other employment-related duties. And employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. Given the practical realities of rest periods, an employer cannot satisfy its obligations under Wage Order 4 … while requiring that employees remain on call."

The court tried to downplay the impact of its decision, writing that nothing "in our holding circumscribes an employer's ability to reasonably reschedule a rest period when the need arises," or to pay employees premium pay to work during the rest period. "A rest period, in short, must be a period of rest," the court said.

A concurring and a dissenting opinion agreed that employers must provide off-duty rest periods pursuant to Wage Order 4-2001 but argued that "a bare requirement" to carry a communications device in case of emergency did not constitute "work." Instead, courts should consider on-call policies on a case-by-case basis, Justice Leondra Kruger (joined by Justice Carol Corrigan) suggested, to see whether they actually interfere with employees' ability to use their rest periods as periods of rest.

To read the opinion in Augustus v. ABM Security Services, click here.