Written by By Galen T. Shimoda and Erika R. C. Sembrano
It is no secret that California requires employers to provide employees breaks during the workday. Assuming an eight-hour workday, an employee should typically receive a morning rest break, a lunch break, and an afternoon rest break. The importance of these breaks is codified in several different sources of authority. See, e.g.,California Labor Code §§ 226.7, 512; Industrial Welfare Commission Order Nos. 1 through 16.
As expected, California lawyers have fought over what the requirements are to truly be legally compliant regarding these breaks. The seminal California Supreme Court case, Brinker Restaurant Corp. v. Sup. Ct., 53 Cal. 4th 1004 (2012), made it clear that employers must provide employees with a meal period and must relieve them of all duties. These meal periods, assuming they are provided correctly, are not compensated. The court also referred to “on-duty” meal periods, which occur when employees are not able to be relieved of all duties due to the nature of their work. In that instance, employees can agree to work during their meal periods but they must be compensated for it. The main takeaway: working an “on-duty” meal period means being paid for it.
Unfortunately, an employer’s obligation regarding rest periods remained unclear. For years, employers argued that since the Brinker standard did not apply to rest periods, the obligations to provide rest periods are not as strict. And this argument endured.
That is, until December 2016. In December 2016, the California Supreme Court in Augustus v. ABM Security Services, Inc. cleared all doubts and made its intentions known. Augustus involved security guards who were required to keep their pagers and radio phones on, even during rest periods, in case they had to respond to a call if the need arose. The company tried to emphasize that the security guards could actually take uninterrupted rest periods, but the court did not buy it. Instead, this requirement created a control over the security guards such that they could not truly take a “rest” period. The court emphasized, instead, that many portions of the California Labor Code were enacted to protect employees. Viewing the regulations in light of this purpose, the court found that a rest period should be free of labor, and having to be “on call” during a rest period does not truly mean being free from labor. Instead, the security guard is still under the company’s control.
Additionally, the law provides that rest periods are treated as hours worked, meaning that rest periods are compensated and no time is deducted for taking a rest period. The court reasoned that if the security guards are required to work during their rest periods, then there is no difference between a rest period and literal work. In other words, since rest periods are paid but are not considered actual hours worked, there must be some sort of allocation to rest periods as being, in actuality, resting periods as opposed to working. The company was attempting to use these rest periods as work hours by requiring the security guards to remain on-call and, therefore, not truly providing the security guards with rest periods. This was not commensurate with the purpose of the rest period statute. As a result, the standard that employers should now abide by is to “relieve employees of all duties and relinquish control over how employees spend their time.” Augustus, p.15.
The dissenting opinion, however, took issue with the fact that requiring employees to remain “reachable” (by phone or page, for example) during a rest period is not “work,” especially if employees are not interrupted. However, the court rebutted this argument, stating that the employees are still under the employer’s control by being asked to carry a device or make other arrangements in order to remain “reachable.” This requirement, therefore, does not allow the employee to use rest periods for their own purposes.
Finally, the court noted that if an employer simply cannot provide a full rest period because a rest period was interrupted, the employer can 1) provide employees with another rest period to replace the interrupted one; or 2) pay the premium! In other words, provide the mandated rest period or pay for a missed one.
Overall, the Augustus court found strongly in favor of employees, an opinion most welcome in the high wage-theft era that we are in today.
If you are unable to take all rest periods or otherwise have questions about rest periods during your workday, please contact our office to have your potential claims evaluated.