On January 29, 2015, the California Court of Appeal published its long-awaited decision in Augustus v. ABM Security Services, Inc., reversing a near-$90 million judgment awarded in the favor of a certified class of current and former security guards on rest period claims. The decision is a welcome development for California employers, particularly those who ask employees to remain on-call while on breaks in case they are needed.
The Court of Appeal explained that the trial court’s judgment had rested on the false premise “that California law requires employers to relieve their workers of all duty during rest breaks.”
As the Court explained, while ABM’s security guards were required to remain on call during their rest breaks, they engaged in various non-work activities, such as smoking, reading, making personal telephone calls, and surfing the Internet. The Court determined that on-call restrictions were not sufficient to constitute “work” such that guards were not relieved from working during their rest breaks. Significantly, the Court stated that while “an on-call guard must return to duty if called to do so, [] remaining available to work is not the same as actually working.”
In reaching its conclusion, the Court rejected the employees’ argument that a prior Court of Appeal decision regarding rest breaks for security guards – Faulkinbury v. Boyd & Associates, Inc. – “recognized that Wage Order No. 4 requires that all rest breaks be duty free.” Distinguishing Faulkinbury, the Court held that the issue in that case was whether a class could be certified on the facts in that case given that the employer “maintained no ‘policy regarding the provision of rest breaks to security guards and had an express policy requiring all security guards to remain at their posts at all times.’” But the Faulkinbury Court “made no attempt to examine the merits of the employer’s policy or determine the scope of the DLSE’s opinion that rest periods must be duty free.”
The Court also rejected the employees’ assertion that, in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court held that “an employer must relieve an employee of all duty on a rest break and relinquish any control over how the employee spends his or her time.” The Court acknowledged that while Brinker was instructive on the requirements for meal periods and class certification generally, “it said nothing about an employer’s obligation to relieve an employee of all duty on a rest break.”
The employees also argued that two prior decisions – Morillion v. Royal Packing Co. and Aguilar v. Association for Retarded Citizens – supported the notion that on-call rest breaks are unlawful. The Court again rejected the employees’ position because the Morillion and Aguilar cases determined what constitutes compensable work time, which was not at issue in Augustus since “a rest period is already compensable work time.”
Finally, recognizing the recent Mendiola v. CPS Security Solutions, Inc. case, about which we wrote here, the Court concluded that “although on-call hours constitute ‘hours worked,’ remaining available to work is not the same as performing work.”
For these reasons, the Court determined that the trial court’s orders granting summary adjudication and summary judgment in favor of the employees – which hinged on an erroneous interpretation of rest period requirements – must be reversed.
Separately, the Court determined that, based on the facts presented at the trial court, the trial court could reasonably conclude that “ABM possessed a uniform policy of requiring its security guards to remain on call during their rest breaks,” and under Brinker, “[w]hether such a policy is permissible is an issue ‘eminently suited for class treatment.’” Accordingly, the Court affirmed the decision certifying the class.
The decision is helpful to California employers as it clarifies that merely being on call during a rest break – while still being able to engage in many personal activities – does not render a rest period invalid and thus subject an employer to payment of a missed rest period premium. At this time, it is unclear whether the employees will petition the California Supreme Court to review this decision.
