308 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 280 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1028-32 (2012) (“Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on”). 281 DLSE Opinion Letters 1995.06.02 & 2002.02.22. 282 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 963 (2005) (reversing summary judgment to employer; “The XATA computer system did not include a code for rest breaks. This may have encouraged drivers not to take their 10–minute breaks. Drivers said they felt pressured not to take their rest breaks because rest breaks ‘were not on the list of delays that were paid.’ One plaintiff stated: ‘Because of the pressure to complete trips quickly, and the fact that a rest break would cost me money, I never took a rest break except when I was waiting in line to load or unload.’ Apparently, the defendant’s management was aware that some drivers were not taking rest breaks.”). 283 David v. Queen of the Valley Med. Ctr., 51 Cal. App. 5th 653, 661-63 (2020) (affirming summary judgment to employer). 284 IWC Wage Orders § 7(A)(3) (“authorized rest periods need not be recorded”). 285 IWC Wage Orders § 13(B) (“Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.”). 286 See DLSE Opinion Letter 2002.02.22, at 1. 287 See DLSE Opinion Letter 1986.01.03. 288 IWC Wage Orders § 12(A) (“Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”) 289 Lab. Code § 226.7. 290 Augustus v. ABM Sec. Servs., Inc., 182 Cal. Rptr. 3d 676, 686 (2015) (reversing summary judgment to employees). 291 No. S224853 (Cal. Apr. 29, 2015). The Supreme Court agreed to decide these 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 under the analysis of Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833 (2015)? 292 Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257 (2016) (Kruger, J., concurring and dissenting). 293 FAQ, Rest Periods/Lactation Accommodation, available at https://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm (last visited Apr. 21, 2024). 294 See, e.g., Schmidtberger v. W. Ref. Retail, LLC, 2021 WL 5024714, at *22 (C.D. Cal. Sept. 28, 2021) (denying class certification; “The Court … rejects Plaintiff’s contention that a policy of requiring employees stay on the premises during rest breaks is invalid facially.”); Figueroa v. Delta Galil USA, Inc., 2021 WL 1232695, at *6 (C.D. Cal. Mar. 30, 2021) (denying class certification; “[P]laintiff’s argument embeds the notion that California workers are entitled to 10-minute rest breaks outside the workplace. This is not the law.”) (emphasis in original); Bowen v. Target Corp., 2020 WL 1931278, at *6-7 (C.D. Cal. Jan. 24, 2020) (dismissing rest break claim; “a policy that prohibits employees from leaving the property during rest periods—without more—’is not sufficient to establish employer control”); Le v. Walgreen, Co., 2020 WL 3213684, at *7 (C.D. Cal. April 27, 2020) (denying class certification; “[P]laintiffs’ argument that a policy requiring an employee to remain on-premises [during rest breaks] violates California law is incorrect.”); Ritenour v. Carrington Mortg. Servs., LLC, 2018 WL 5858658, at *7 (C.D. Cal. Sept. 12, 2018) (denying class certification where plaintiffs failed to show a rest period policy “requiring employees to remain on site is facially invalid” of that it conflicts with Augustus); Hubbs v. Big Lots Stores, Inc., 2018 WL 5264141, at *4-5 (C.D. Cal. Mar. 16, 2018) (dismissing rest break claim; “an employer may require an employee to remain ‘on premises’ during such rest periods”); Bell v. Home Depot U.S.A., Inc., 2017 WL 1353779, at *2 (E.D. Cal. Apr. 11, 2017) (affirming summary judgment to employer; employer’s argument that Augustus implied on-premises rest periods were legal as “more persuasive and accurate” than employee’s argument to the contrary). 295 Lab. Code § 226.7(a). 296 Lab. Code § 226.7(b). 297 Lab. Code § 226.7(d). 298 AB 2605, 2018 bill adding Lab. Code § 226.75. This urgency bill took effect immediately upon Governor Brown’s signing of the bill into law on September 20, 2018, and was set to expire January 1, 2021. AB 2605 was a direct response to Augustus v. ABM Security Services. 299 AB 2479, 2020 bill extending, past January 1, 2021 and until January 1, 2026, the exemption in Labor Code § 226.75 that applies to rest periods for specified employees who hold safety-sensitive positions at petroleum facilities, to the extent they must carry and monitor communication devices and respond to emergencies, or remain on the employer’s premises to monitor the premises and respond to emergencies. 300 AB 1512, 2020 bill amending Lab. Code § 226.7 to create, till January 1, 2027, a rest-break exemption for the security industry. The employer must be a registered private patrol operator and the affected security officer employees must be registered under the Private Security Services Act. A later, uninterrupted rest period would qualify as a compliant rest period. If a security officer cannot take an uninterrupted rest period of at least 10 minutes for every four hours worked (or major fraction thereof), the officer must be paid one additional hour of pay at the base hourly rate. AB 1512, like AB 2605, was a direct response to Augustus v. ABM Security Services. Labor Code section 226.7(f) now provides: “(1) An employee employed in the security services industry as a security officer who is registered pursuant to the Private Security Services Act (Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code) and who is employed by a private patrol operator registered pursuant to that chapter, may be required to remain on the premises during rest periods and to remain on call, and carry and monitor a communication device during rest periods. If a security officer’s rest period is interrupted, the security officer shall be permitted to restart the rest period anew as soon as practicable. The security officer’s employer satisfies that rest period obligation if the security officer is then able to take an uninterrupted rest period. If on any workday a security officer is not permitted to take
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