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Rest Break ≠ On-Call

Employment rights have long been a fertile source of conflict in California courts, which have been trying to find a proper balance between the interests of the employer and those of the employees.

The most recent skirmish was in December 2016. The California Supreme Court restored a $90 million judgment against ABM Security Services. Security guards that ABM employed had sued to protest the practice of keeping them “on call” during their statutorily entitled rest periods. The Court had previously ruled that employees had to be relieved of all duties during rest periods.

dreamstime_xs_32682609However, ABM claimed that requiring the guards to remain available to calls when needs arose, even during rest periods, did not impinge upon the employee’s right to those rest periods. The Court found otherwise: California “state law requires employers to provide their employees with rest periods that are free from duties or employer control.” Cal. Labor Code § 226.7 states that employers “shall not require an employee to work during a meal or rest or recovery period . . .” The Court found that a ‘rest period’ meant time free from labor, work, or “any other employment-related duties” – which includes being “on-call.” The court concluded that “a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks.” The Court found that an employer’s only alternative is to either:

  1. Replace an interrupted break with another one, or
  2. Pay premium pay as authorized in California: one hour of regular pay for each workday that a rest period is not provided (Industrial Welfare Commission, § 12B).

This is an era of tight staffing: many jobs are filled by one person but can be required to be on-call at all times, like receptionists. Employers need to be especially cognizant of California’s byzantine rules.

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