Bringing the 2016 session to a close, the California Supreme Court issued its opinion in Augustus v. ABM Security Services, Inc. on December 22, 2016. This case was brought by a security guard in relation to rest periods. The California Supreme Court addressed two important issues: (1) whether employers are required to permit their employees to take off duty rest periods under Labor Code section 226.7 and Industrial Welfare Commission Wage Order No. 4 and (2) whether employers may require employees to remain on call during rest periods.

The requirement of the plaintiff security guard was that she kept her pager and radio phone on during rest periods and to remain vigilant and responsive to calls. Such services included when a building tenant wished to be escorted to the parking lot or a building manager had to be notified of a mechanical problem. Additionally, she may be required to respond to the occurrence of some kind of emergency situation. The plaintiff alleged that these obligations failed to provide her with rest periods required by State law. The trial court agreed with the plaintiff and awarded approximately $9,000,000.00 to the class, including penalties. ABM, the employer, appealed this decision and the Court of Appeals reversed prompting appeal to the California Supreme Court.

Evidence presented to the trial court showed that ABM security guards’ primary responsibilities were to provide an immediate and correct response to emergency/life safety situations and to be the physical security for the building, its tenants and their employees by observing and reporting all unusual activities. In essence, the guard was the eyes and ears of the site.

During discovery the company admitted that guards were not relieved of all their duties during rest periods. They were required to keep their radios and pagers on and to remain vigilant and respond when necessary. The company reasoned that at most it required guards to remain on call during rest periods in the instance that an incident arose requiring a response. ABM also provided evidence that its security guards regularly took their rest breaks uninterrupted by service calls.

The Supreme Court determined to resolve whether State law requires employers to authorize off duty rest periods. An off duty rest period is a period of time where the employees are relieved of all work related duties and are completely free from employer control. The court reasoned that the ordinary meaning of “rest” conveys the opposite of work. As such, the court concluded that pursuant to the Labor Code and the Industrial Welfare Commission Wage Order, rest periods must be free from job obligations in order to comply with California law.

The court then turned to whether an employer can satisfy its obligation to provide work-free rest duties while still requiring its employees to remain on call. The court concluded that this is not acceptable. The court reasoned that requiring employees to remain tethered to a particular location or to communication devices is inconsistent with the employee being free of all work duties and employer control during the rest period. The rest period is to be free from all employment-related duties and obligations and employer control. Therefore, having any policy which requires the employee to respond to the employer’s control during the rest period would be in violation of California law.

The court also pointed out that if the situation arose for an employer where it was extremely burdensome to relieve an employee during a rest period, the possibility remained that the employer could pay the premium pay set forth in the Industrial Welfare Commission Wage Order.

Based on this recent decision, employers should be aware that employees must be free from all employer obligations and job requirements while taking their rest break. This includes being completely free of employer control and as such employees cannot remain on call or required to have radio devices or pagers on during their rest periods. Doing so would violate California law and making an employer susceptible to penalties.