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Is an "on-call" rest break really a break? -January-2017

Is an "on-call" rest break really a break?

One of the toughest pitfalls for employers to avoid are meal and rest breaks. I've covered the basics of meal and rest breaks in the past, but the law seems to be changing rapidly in this arena. A new case decided by the California Supreme Court makes a new change.

In Augustus v. ABM Security Services, Inc., the California Supreme Court held that the same standard that applies to off-duty meal breaks applies to paid rest break time. The meal break law is that during unpaid, off-duty meal breaks, employees must be relieved of all duties and free from employer control as to how they spend their time. The Court has now held that this is also true for paid rest break time, and that an employer does not comply with the law if it requires employees to remain "on-call," or available for possible interruption during rest breaks. The court reasoned as follows:

"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...An employee on call cannot take a brief walk - five minutes out, five minutes back - if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time - like pumping breast milk or completing a phone call to arrange child care."

Whether the Court's analysis makes sense or not, it is now the law. This means that any policy requiring an employee to remain on-call (or perform any work whatsoever) during a rest break is now illegal. Furthermore, any policy that results in the employer maintaining "control" over the employee during a rest break is also not permissible. The penalty for violating an employee's right to an uninterrupted rest (or meal) break is one hour of pay for a missed break, or in the case of an interrupted break, to allow the employee to re-start the break without interruption.

On the bright side for employers, the Court did acknowledge that policies requiring the employees to remain on the premises are still allowed.

This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler & Abbott LLP, (559) 625-9600, 1110 N. Chinowth St., Visalia, CA 93291 (www.thecalifornialawyers.com).

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