On-Duty and On-Call Rest Periods Illegal, Cal Supreme Court Rules

By Casey C. Sullivan, Esq. on December 27, 2016 | Last updated on March 21, 2019

When is a rest period not a rest period? When you're kept working or on call the whole time, the California Supreme Court recently ruled. In a case decided last Thursday, the court ruled that California law prohibits rest periods and breaks where an employee remains on duty or on call, such as when employees are required to respond to calls or perform basic tasks even when on a required break.

For a break or rest period to meet the requirements of California law, the court concluded, employees must be truly free from work duties.

You Call That a Break?

The case arose after a group of security guards working for ABM Security Services sued the company, alleging that their breaks were not breaks at all. ABM required guards to remain responsive to pagers and phones during rest periods and to complete tasks such as walking tenants to parking lots, notifying managers of problems, and responding to emergencies.

The California Labor Code section 266.7 dictates that "No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission." IWC Wage Order 4 further requires that employers provide 10-minute breaks for every four hours worked. Failure to comply with the break requirement obliges employers to provide one hour of pay for every day without a provided rest period. The order also requires 30-minute meal breaks where the employee is relieved of all duties, unless an on-duty meal break is agreed to in writing.

Since the meal break provision required employees to be relieved from all duties while the 10-minute rest provision did not, the Court of Appeal found that no such full relief from work was required. The California Supreme Court disagreed.

Rest Means "The Opposite of Work"

"The ordinary meaning of 'rest' conveys, in this context, the opposite of work," Associate Justice Mariano-Florentino Cuéllar wrote for the court. That is, a time "free from labor, work, or any other employment-related duties."

If the IWC wanted to allow on-duty breaks, the court reasoned, it would have done so specifically, as it did for meal breaks. It did not. While on-duty lunch breaks are paid, rest periods are not. Requiring the employee to perform on-duty rest periods would be akin to requiring a worker to perform free work, the court concluded.

The same goes for on-call rest periods. Even if an employer releases a worker from employment duties while on break, the employer cannot then require the worker to remain on call during that time. "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 that employees be given rest periods, the court wrote.

In its conclusion, the court lays out the takeaways quite clearly:

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 remain on call. A rest period, in short, must be a period of rest.

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