Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 225 security guards who must carry their pagers while on break were thereby denied their rest breaks, regardless of whether they were ever paged. The result was a judgment against the security company in an amount exceeding $100 million. In 2015, the Court of Appeal reversed the trial court, holding that on-call rest breaks are still valid rest breaks, unless the employer actually interrupts the break by calling the employee to duty during the break. The Court of Appeal noted that the standard was whether the employer had breached its duty “not to require an employee to work during a meal or rest or recovery period. ” 265 Thus, the Court of Appeal concluded that the employer, in merely requiring the security guards to be on call during breaks, did not breach this duty, because the guards could pursue personal activities during the breaks: “remaining available to work is not the same as actually working. ” 266 The California Supreme Court then agreed to review the case to address two issues: (1) Do Labor Code section 226.7 and Wage Order 4 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time? In 2016, the Supreme Court answered in an unexpected opinion that disrupted the sensible outcome reached by the Court of Appeal . 267 Augustus adopted a simplistic, radical interpretation of the rest-break requirement that disregarded contrary long- standing Labor Code interpretations by the DLSE. The simplistic view adopted in Augustus is that a “rest period” must be “a period of rest,” which to the high court meant a period wholly free of any work duty. Augustus thus overturned long-settled employer expectations by announcing that rest breaks, like meal periods, must be completely “duty free”: an employee on a rest break who must be “at the ready, tethered by time and policy to particular locations or communications devices,” has not been afforded the statutorily required rest break. Under this radical view, as the dissenting opinion suggests, merely requiring an employee on break to stay on premises, or to carry a radio in the case of an emergency, may make the rest break non-compliant, even if the employee’s break is never interrupted . 268 In 2017, the DLSE responded to Augustus by revising its response to a frequently asked question about rest breaks, stating that now employers may not require employees to remain on the premises during their rest breaks: Q. Can my employer require that I stay on the work premises during my rest period? A. No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services … the California Supreme Court held that the rest period requirement “obligates employers to permit and authorize employees to take-off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.” … As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time . 269 Augustus imposes extraordinary burdens on businesses that need to have workers on call for emergencies while needing them in practice only rarely. Private ambulance operators, arguing that fully complying with Augustus would cost municipalities tens of millions of dollars, induced California voters to pass Proposition 11 in 2018, to provide that ambulance operators can require ambulance employees to remain on call during meal and rest breaks in order to respond to 911 calls, with employers to reschedule breaks that were actually interrupted. Despite Augustus , the dust has not settled as to whether employees must be allowed to leave the premises during rest breaks. In fact, some courts have recently limited Augustus to its facts (e.g., on-call security guards), indicating that there is not necessarily a requirement to allow offsite rest period s. 270