The California Supreme Court previously clarified in its landmark decision in Brinker Restaurant Corp v. Superior Court that employers need to make breaks available but do not need to police or ensure the breaks are taken. However, the decision did not directly address the issue of whether a rest break need to be free from all duty or control as is the case for meal breaks.
We may soon have an answer to this question. The California Supreme Court recently agreed to hear a class action brought by ABM Industries Inc. security guards who allege they were forced to be on call and remain on the company’s premises during rest breaks. The Court of Appeal in December 2014 found that California’s IWC Wage Order covering rest breaks, unlike meal breaks, did not include the requirement that an employee be “relieved of all duty.” The Court found the fact that the commission failed to prescribe that an employee must be relieved of all duty during a rest period, like it did with meal breaks, indicates no such requirement was intended.
The Court of Appeal also found that the Labor Code mandated only that an employee not be required to “work” on a rest break, not that he/she be “relieved of all duty.” According to the Court of Appeal, “work” means something akin to “exertion” on the employer’s behalf by the employee, and simply being on-call is a “state of being,” not an action or exertion. The court also made a distinction between meal and rest breaks in that meal breaks are unpaid time, while rest breaks are paid. Perhaps this is why the court did not seem to find it unreasonable that an employee could be on-call and still have a rest break, considering the employee was being paid for his/her on-call time.
The California Supreme Court will address these issues and provide future guidance regarding rest period policies. The case is Augustus v. AMB Security Services, No. S224853.