More Bad News for Employers: The California Supreme Court Holds That Requiring Employees to Remain on Call During Rest Breaks Renders the Breaks Invalid

More Bad News for Employers: The California Supreme Court Holds That Requiring Employees to Remain on Call During Rest Breaks Renders the Breaks Invalid

by Susana P. Solano, Esq.

In Augustus v. ABM Security Services (ABM Security), a class action filed 11 years ago and certified as a class in 2009, the California Supreme Court ruled that ABM Security unlawfully required the class of security guards to remain on call during rest breaks, reinstating the trial court’s $90 million judgment for the class and against ABM Security.

In a motion for summary adjudication, the plaintiffs argued ABM Security required them to remain on duty during their breaks. ABM Security responded that it required guards to be “on call”—that is, to keep radios and pagers on, in case an incident required a response. The plaintiffs offered no evidence that their rest periods had actually been interrupted. The trial court granted the motion. The court of appeal reversed the judgment. The California Supreme Court held that requiring guards to be available to return to work from a rest period meant the employer was exerting control over the employees, rendering the break invalid and requiring payment of a rest period premium.

Now what? The holding in this case will likely increase wage and hour class actions by employees alleging their rest periods were not made available, or were invalidated, because of the mere possibility the employer could recall them to return to work from break. Employees can file an action for rest period violations going back up to four years, and if you are defending a pending action, the holding is retroactive. If you are an employer, now is the time to review your rest period policy and practice, and confirm that both comply with California law, including recent case law. The wrong wording in a written policy can result in a costly class action. If you are an employer with a practice or policy permitting employees to be recalled to work from their rest breaks, consult with an attorney about the changes you may need to implement.