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Posted by on Dec 23, 2016 in Publications |

California Supreme Court – Rest Periods Must Be Restful

California Supreme Court – Rest Periods Must Be Restful

Rest means rest

In a ruling issued this week, the California Supreme Court in Jennifer August, et al. v. ABM Security Services, Inc. held in a two-part decision that state law prohibits on-duty and on-call rest periods, concluding that during required rest periods employers “must relieve their employees of all duties and relinquish any control over how employees spend their break time.”

The Court specifically held that “a rest period during which an employer may require that an employee continue performing duties seems to place too much semantic emphasis on ‘period’ – and too little on ‘rest'” and that “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.”

In short, when an employee is on break, the employee must be on break – the employer cannot require him to perform certain duties while he is resting (e.g. continue sitting in the security booth) or to remain ready to perform certain duties while she is resting (e.g. keep her radio on and be ready to respond to any call for help).

What is a wage order?

As with all things relating to the law, the general rule arising from this ruling has at least a couple of significant conditions. First, it is limited to particular wage orders. What is a “wage order”? Essentially, California issues specific instructions about the treatment of employees in different fields of employment, which are called “wage orders.” For example, the wage order for those who work in the manufacturing industry (#1) is different in some respects from those who work in the motion picture industry (#12), as what is practical in one industry may not be feasible in another one.

The Court’s decision was made with regard to Wage Order #4, as opposed to all wage orders. Although it is likely the decision will be applied to other wage orders that share similar or identical restrictions on rest periods, it will not apply to all of them – Wage Order #5, for example, was specifically pointed out by the Court as an exception. So this is not a universal holding for all employers and employees.

Change begets change

And second, wage orders can be changed, amended, or otherwise updated as the Department of Industrial Relations and/or California Legislature see fit. Although Wage Order #4 was last amended in 2001, there is nothing to prevent this or other wage orders from being amended so as to render the Court’s decision obsolete.

Why might such an amendment be made? Consider the facts of the case: the employer imposed on-duty and on-call requirements on security guards, who it required to keep their pagers and radio phones on and to remain vigilant and responsive to calls when the need arose. While the Court’s decision that “rest means rest” certainly makes sense, one can also appreciate the employer’s expectation that its security guards wouldn’t watch TV, read a newspaper, or otherwise remain oblivious and ineffective while the facility they are supposed to be guarding is being robbed or attacked, simply because they were “on a break.”

So although the Court’s decision is the law for now, it remains to be seen whether or not it will be the law a year or two from now. It doesn’t take much imagination to come up with a scenario where an industrial accident or security breach spirals horribly out of control for the sole reason that key employees were on break and couldn’t be reached in time to step in and prevent the incident from deteriorating. Indeed, the dissent notes as much, finding the majority’s ruling denies “employers of the means to contact their employees in case of urgent need.” Only time will tell whether or not the majority’s ruling becomes the long-term law in California.

TLDR: For now at least, rest breaks mean that most employees must be left completely alone, which includes allowing them to cut of all communication with their employer during the rest break.

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