United States: The $90 Million Question: Can You Rest While On Call?

Seyfarth Synopsis: Does carrying a pager nullify a rest break? What about the possibility of being tapped on the shoulder by your boss? Or being called on your cell phone? The California Supreme Court considered these and other scenarios during an hour-long oral argument on September 29, as it asked, What does it mean to not "work" during a rest break? Although the question seems straightforward, the answer does not yet seem clear to the justices.

The case is called Augustus v. ABM Security Services Inc., S224853. We previously blogged about this important case here.

Though rest breaks are paid, Labor Code Section 226.7 prohibits employers from requiring "work" during those breaks. The trial court found that ABM owed damages—almost $90 million—to a class of 14,000 security guards, some of whom had to carry radios during rest breaks. The trial court's broad rule—"if you are on call, you are not on break"—was reversed by the Court of Appeal, which said that "remaining available to work is not the same as performing work." The consequence of not providing a rest break is an extra hour of pay for each day in which a break was not provided.

From the oral argument, it appears that the justices are struggling with how to craft a rule for what counts as "work" that would not, in Justice Goodwin H. Liu's words, be a "recipe for litigation." The justices actively questioned counsel for both sides, leaving it unclear whether a majority agreed with ABM's position that simply being on call is not work, or with the plaintiffs' position that any requirement (e.g., listen for your pager) would prevent an employee from putting on a "sleep mask" and headphones, and would nullify the entire rest break.

The justices explored whether there should be a distinction between (1) the mere potential of being called back to work during a break and (2) a requirement that employees be easily reachable during a break. And Justice Liu, who seemed most skeptical of ABM's position, repeatedly asked whether employees could be disciplined for refusing to answer a summons to return from a break.

While it remains to be seen what rule the high court ultimately crafts, here are the main options raised in briefing and at oral argument:

  • Any possibility of "fetching" or "hailing" nullifies a break: this least employer-friendly position, adopted by the trial court, was met with skepticism by Justice Leondra L. Krueger and others. Justice Liu, however, asked both sides why there should not be a blanket prohibition of employers contacting employees during rest breaks. This rule would have the virtue of "simplicity." ABM responded that this would be a "really bad rule," and plaintiffs did not vigorously defend Justice Liu's proposal either, acknowledging that employers may have emergency reasons for calling an employee back.
  • The Brinker rule: Plaintiffs proposed the standard set in Brinker for meal breaks: an employer provides a compliant break "if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted [10]-minute break, and does not impede or discourage them from doing so." On-call time would not satisfy Brinker, Plaintiffs argued, because being "on call" is a "duty."

It's unclear whether this rule could garner a majority. Justice Werdegar (Brinker's author) pointed out that the "relieved of all duty" requirement governing meal breaks is absent from the rest break statute, and that rest breaks are paid. At the same time, though, she and other justices asked ABM why the Brinker rule could not also apply to rest breaks.

  • Being on-call does not nullify a break: this employer-friendly position, adopted by the Court of Appeal, was advocated by ABM. The justices did not explicitly mention the appellate court's opinion during oral argument. At one point, however, the Chief Justice did remark that being on call seems like "work," to which ABM responded by explaining that "work" is the actual performance of duties, not being available to perform them.

When asked specifically what overarching rule the Court should craft, ABM advocated a hybrid of Brinker and Mendiola (which held that on-call time must be paid). Under ABM's proposed rule, an on-call rest break would be valid if the employee was given a "reasonable opportunity for an uninterrupted break," during which the employee could engage in personal activities. Carrying a pager could ease any restrictions on an employee's mobility, ABM pointed out, and would thus satisfy its proposed rule.  This rule would have the merit of distinguishing true rest breaks from "sham breaks" that are frequently interrupted in practice.

  • The "Liu "presumption": Justice Liu, after calling ABM's rule something that "sounds reasonable" but that is hard to implement in practice, proposed a presumption that a break is compliant if there is no on-call policy, if employees are free to do what they want, and if there is a "policy and practice" of not interrupting breaks unless there is an emergency. The other justices did not pick up on Justice Liu's proposal.

The Supreme Court's decision is expected within the next 90 days (by December 27). We will share a full analysis of the decision as soon as it is issued.

Edited by Michael A. Wahlander.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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