When is a Rest Period Really NOT a Rest Period?
The California Supreme Court creates new rest break liability for employers
January 17, 2017

The California Supreme Court issued a new ruling just in time to ruin the holidays for employers who thought they were handling rest breaks properly. On December 22, 2016, in Augustus et. al v. ABM Security Services, Inc. ("ABM"), the Court held that if an employer requires employees to remain on-call or on standby during their 10-minute rest break, even if the employees are not interrupted during the break, it is not a valid rest break at all.

ABM required its security guard employees to remain on call during rest breaks by keeping "their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations." Other than passively monitoring their radios and pagers, and unless an incident arose requiring an immediate response, the employees regularly received and took their 10-minute rest breaks.

The California Supreme Court found that this practice of remaining "on call" violated the intent of California Labor Code section 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040 (Wage Order 4)), which provide that employees must be relieved from all work-related duties and free from employer control during required rest periods. The Court's ruling emphasizes that, "employers must relieve their employees of all duties and relinquish any control over how employees spend their break time" -- i.e., treat rest breaks like meal breaks.

The Court did suggest that simply requiring an employee to remain on site during a rest period may not be considered enough "employer control" sufficient to create a rest break violation: "Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A), they impose practical limitations on an employee's movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain onsite or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control." This is in keeping with the California Department of Industrial Relations' official interpretive statement on rest periods that "Since employees are paid for their rest periods, they can be required to remain on the employer's premises during such periods." (See https://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm).

The Court also noted, however, that although the law does not specifically mention time spent on call, "one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods." The Court made reference to the employee being able to go for a walk, presumably off site, bound only by the practical constraint of returning to duty at the end of the 10-minute break period. The Court therefore implied that it might not look favorably after all upon a policy that required the employee to remain on site during the rest period.

Thus, the Court's ruling does not clarify the extent to which employers may limit an employee's conduct during rest breaks (if at all), and in fact, creates further confusion for employers with its incongruous statements. As a result, an employer must use extreme caution in placing limitations of any kind upon employees during rest breaks -- the fact that no interruption of the rest break actually occurred will no longer protect against liability when the rest break could have been interrupted by work obligations.

Employers should immediately discuss a revision of their rest break policies and practices with their employment law counsel. Proactive measures to avoid legal and financial risk include:

• Draft rest period policies to require employees to return from a rest break in a timely manner, rather than precluding them from leaving the workplace at all.
• Instruct employees that they may not take their breaks at their work stations, to avoid unexpected work interruptions. Provide a convenient area for rest breaks to protect against interruptions from staff or customers.
• Instruct management and staff that they may not interrupt any employee taking a rest break, even momentarily, except in emergency circumstances.
• Monitor employee compliance with rest break policies and procedures, and promptly discipline employees for any violations.
• Include rest break certification language in time records, documenting the breaks available and the employees' acknowledgement of receipt of such breaks.
• Pay applicable rest period penalties when a rest period is missed, late, short or interrupted, to demonstrate legal compliance and avoid employee claims.

Rest break violations (among other wage and hour issues) can result in financially staggering liability. In view of the Court's decision in ABM, employers can expect a significant increase in individual and class action litigation brought by plaintiff's attorneys looking to exploit existing policies and practices that may arguably run afoul of the Court's ruling. We strongly encourage employers to promptly review their rest break policies and practices with employment law counsel to ensure compliance with the ABM decision and minimize the risk of costly disputes.

For assistance with updating your rest break policies and practices for 2017, or questions regarding any other employment law matter, contact the attorneys at LightGabler.

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