Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Jennifer L. Hippo | The Daily Recorder | Mar 3, 2015

California law requires employers to provide non-exempt employees paid rest periods of at least 10 minutes during each four-hour work period, or major fraction thereof. Because these rest periods are short and paid, they are fundamentally different from legally mandated meal periods. For example, may an employer require employees to be “on call” during a rest break? Or must a rest break, like an unpaid meal period, be entirely free from the employer’s control?

The Second District Court of Appeal in Augustus v. ABM Security Services addressed what constitutes a valid rest period under California law. The Court’s decision overturned a massive class action verdict in favor of security guard employees, and helps clarify the law regarding valid rest periods.

Rest Period Obligations

The general rule regarding rest periods is as follows: “Every employer shall authorize and permit all employees to take rest periods . . . based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. . . .” That standard appears in the Wage Orders promulgated by the Industrial Welfare Commission. From case law, such as the California Supreme Court’s seminal decision in Brinker Restaurant Corp. v. Superior Court, we know that the employer merely has to “authorize and permit,” rather than force, employees to take their breaks.

Labor Code section 226.7 provides, “An employer shall not require an employee to work during a meal or rest or recovery period.” Employers that require employees to work through rest periods, or to take non-compliant rest breaks, may be liable for an hour’s pay per day.

For an unpaid, meal break to be valid, the employee must be “relieved of all duty.” Therefore, the employer cannot require, for example, that an employee remain on premises or at his or her work station during a meal period.

With respect to rest periods, the law mandates at least 10 minutes “net rest,” but does not define what counts as “rest” under the law. The statutes and regulations are silent regarding whether the employer must ensure the employee is “relieved of all duty” during the 10-minute rest period. That is the issue the Court of Appeal addressed in Augustus.

The Potential to Be Interrupted

In Augustus, the plaintiffs were security guards for ABM Security Services. They claimed that ABM failed to provide valid rest breaks as required by California law because the guards had to remain available to answer radio calls during their breaks. They were otherwise free to have a snack, use their phones, etc. The principal dispute was whether it is a valid rest break if there is the potential to be interrupted by a radio call?

The trial court ruled that ABM did not authorize and permit valid rest periods. It granted summary judgment in favor of the plaintiffs, and awarded them over $100,000,000 in penalties and other relief. Relying on meal period rules, the trial court ruled that if you are on call, you are by definition not on break.

The Court of Appeal disagreed with the trial court on several grounds. The court referred to the text of section 226.7, which provides that an employee may not be required to work during a break. The court refused to hold that the mere potential to be called back to work during a rest break was “work.”

The court compared the plaintiffs’ responsibilities when working and on-duty from those when on-call. ABM required its working, on-duty, guards to actively observe and perform many tasks, such as greeting visitors and raising or lowering flags. In contrast, guards on-call during a rest period performed no active work, and were permitted to engage in personal, non-work activities, including personal phone calls and using the internet. While on break, guards must return to duty if asked to do so. However, the court reasoned, remaining available to work is not the same as actually working. The court noted that when an employee is actually interrupted, the employer owes the one-hour penalty.

The court also decided that rest periods do not require employers to ensure employees are entirely free from duty during a paid rest period. The court noted that the Wage Orders and the Supreme Court’s Brinker decision require that employees be “relieved of all duty” during unpaid meal periods. Neither the Wage Order nor Brinker considered “paid” rest periods (which are normally taken on the employer’s premises) to be similar to meal periods.

Recommendations for Employers

Augustus clarifies employers’ responsibilities regarding rest periods. An employer does not have to create isolation chambers for employees taking 10-minute rest periods, which may have been the outcome if the plaintiffs had prevailed.

Nevertheless, employers must understand the line between “on call” and a “working” rest break. The mere potential to work or availability to work does not void a rest period. But if the supervisor, customer, or other duties interrupt the employee’s rest period, the one-hour penalty may be due. Similarly, allowing employees to take a “break” while sitting at the work station, or while simultaneously watching a door, cameras or equipment may not count as a valid break.

To ensure lawful wage-hour practices, employers’ policies should provide that employees are expected not to work during rest breaks. Employees should be provided a way to report interrupted rest periods so they may be compensated accordingly. Employers should train management not to interrupt workers on break without understanding the wage-hour consequences of doing so.