42 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com 2. Employers Must “Authorize and Permit” Rest Periods Section 12 of the Wage Orders also requires an employer to authorize and permit employees to take a paid, tenminute rest period for every four hours worked, or major portion thereof.207 No rest period must be authorized unless an employee works at least three and one-half hours in a workday.208 Employees are entitled to a ten-minute rest period for shifts from three and one-half to six hours in length, another ten-minute rest period for shifts of more than six hours up to 10 hours, and another ten-minute rest period for shifts of more than 10 hours and up to 14 hours.209 “Insofar as practicable,” employers must provide rest periods near the middle of each four-hour work period, but need not provide a rest period before the first meal period.210 Unlike meal periods, rest periods need not be recorded. While the Wage Order provisions specifically require that employees be “relieved of all duty” during meal periods, the Wage Order provisions setting forth the rest period requirements do not contain this language. However, Labor Code section 226.7 provides that “no employer shall require an employee to work during a meal or rest or recovery period[.]” Based on this proscriptive language, the California Supreme Court held that employees must not be kept “on call” during rest periods, even though they are “hours worked” and thus are paid.211 In Augustus v. ABM Security Services, Inc., the Supreme Court held that ABM’s practice of requiring security guards to keep their radios or pagers on during rest periods and to respond if called constituted an impermissible “on duty” rest period.212 Augustus reasoned that rest periods by their very nature must be “duty free,” and found that an employee on a rest period who must be “at the ready, tethered by time and policy to particular locations or communications devices,” is not “duty free.”213 Augustus determined that being “on call” during rest periods “compels employees to remain at the ready and capable of being summoned to action” and requires employees to fulfill certain duties during the break, including 207 The fact that an employer’s rest period policy omitted the required language of “major fraction thereof” does not automatically result in a “common” unlawful practice, for purposes of class certification. Rather, the plaintiff must still show that employees were harmed or “suffered injury” based on an application of the policy. Davidson v. O'Reilly Auto Enterprises, LLC, 968 F.3d 955, 967 (9th Cir. 2020) (affirming denial of class certification; “Although Davidson argued that O'Reilly’s written rest-break policy was inconsistent with California law because it omitted the phrase ‘or major fraction thereof,’ she did not show that the policy was applied to employees in a way that violated California law. Because there was no evidence that a class of employees ‘suffered the same injury,’ Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (quoting Falcon, 457 U.S. at 157, 102 S.Ct. 2364), Davidson did not establish commonality”; “Put another way, the mere existence of a facially defective written policy—without any evidence that it was implemented in an unlawful manner—does not constitute ‘[s]ignificant proof’ … that a class of employees were subject to an unlawful practice.”). 208 IWC Wage Orders, § 12(A). 209 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1029 (2012). 210 Id. at 1031-32. 211 See Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 270 (2016) (“[A] broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks.”) 212 Id. at 266. 213 Id. at 269.
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