This is another post in a Q-&A series in which we answer a question related to California employers’ duty to provide employees with 10-miute rest breaks.

                I.          Question

I work as a waitress in a local restaurant. My shift usually starts at 5:00 pm and ends around 11:30 pm. My manager tells me that I should take at least two 10-minute rest breaks during my shift and at the same time I should keep an eye on my tables. In other words, the management allows me to take rest breaks but requires me to respond to customers’ needs while on break. For example, during my rest breaks, I usually go to a wait-station, browse the Internet on my smartphone or simply do nothing. However, if the customer needs ketchup, refill, or anything else, I have to interrupt my break and take care of the customer. My managers do not care if my rest break is interrupted and tells me that I get paid for my rest periods and I do not need to clock out. While this is true, I still would like to know whether it is legal to require me to attend to customers’ needs while taking my 10-minute rest break.

              II.          Short Answer

This practice is likely unlawful under California Labor Code section 226.7 and Wage Order No.: 5-2001, Section 12(a). Specifically, California law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

           III.          Legal Analysis

This very issue has been recently addressed by the California Supreme  Court in a case Augustus, et al. v. ABM Security Services, Inc.  In this case, the employees worked as security guards for a defendant ABM Security Services, Inc. (ABM). As a condition of employment, ABM  required the guards to keep their pagers and radio phones on –– even during rest periods –– and to remain vigilant and responsive to calls when needs arose. For example, the guards were required to assist building tenants who wished to be escorted to the parking lot, to notify a building manager of mechanical problems or some kind of emergency situations.

The employees/security guards brought a lawsuit against ABM, alleging that ABM’s rest break policy was unlawful because ABM required the guards to be on-call during the rest breaks. After the trial court ruled in favor of employees, awarding them $90 million in premiums for unlawful rest breaks, and after the Court of Appeals reversed the trial court’s order, the case went all the way to the California Supreme Court. The Court held that “on duty” and “on-call” rest breaks do not satisfy the employer’s obligation to provide rest breaks.  The Court provided the following reasoning:

A.    Off-duty rest periods

First, the court resolved whether state law requires employers to authorize off-duty rest periods –– that is, time during which an employee is relieved from all work-related duties and free from employer control. The court referred to the IWC’s Wage Order 4-2001, Subdivision 12(A) which reads, in relevant part, ― every employer shall authorize and permit all employees to take rest periods . . . . authorized rest period time shall be counted, as hours worked for which there shall be no deduction from wages. The Court pointed out that a reasonable reader would understand ―rest period to mean an interval of time free from labor, work, or any other employment-related duties. Also by referring to Labor Code section 226.7, the Court inferred that employers‘ responsibilities are the same for meal and rest periods –– an inference that also reflects the protective purpose of both. The Court emphases that if the IWC wanted to allow on-duty breaks, they would have included an express language, just the way the IWC did so in subdivision 11(A). Therefore, the IWC’s failure to do so in subdivision 12(A) is a telling indication it did not contemplate on-duty rest periods.

The Court also noted that that Wage Order 4, subdivision 12 is identical to the rest period provisions of most other wage orders with the exception of Wage Order 5-2001, where the IWC included the language authorizing on-duty rest periods, but only in highly limited circumstances. Wage Order 4 did not include such an exception. Therefore, the Court concluded that during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.

B.    On-call rest periods:

The Court, then, considered the second question whether an employer satisfies its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call? The answer is no.

The Court stated 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.” Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees‘ retention of freedom to use rest periods for their own purposes.

Therefore, the Court explained,  employees must not only be relieved of work duties but also be freed from employer control over how they spend their time. Given the practical realities of rest periods, an employer cannot satisfy its obligations under Wage Order 4, subdivision 12(A) while requiring that employees remain on call.

The Court also pointed that employers have two options nonetheless if they find it especially burdensome to relieve their employees of all duties during rest periods –– including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7.14

           IV.          Conclusion

To sum up, California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods. In the context of security guards’ duties, Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time  -and relieve their employees of all duties –– including the obligation that an employee remains on call. A rest period, in short, must be a period of rest.