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Rest Breaks and the On-Call Employee

In 2012, the California Supreme Court reached a landmark decision regarding employee rest breaks in the case of Brinker Restaurant Group v. Superior Court. In the Brinker case, the court held that employers did not have a duty to police employee meal breaks and that employers were not required to ensure that no work was performed by employees during these breaks. The court stated that "relief from duty and relinquishing of control satisfies the employer's obligation." However, the Brinker case did not address what obligations an employer has, if any, with respect to rest breaks.

In California, an employee working more than 3.5 hours per day must be allowed to take a paid 10-minute rest period per every four hours of work. The law makes it clear that an employer cannot require an employee to "work" during rest periods (Labor Code section 226.7(b)).

In a recent case, Augustus v. ABM Security Services, Inc., a group of security guards claimed that their employer failed to provide uninterrupted rest periods by requiring employees to leave their radios and pagers on during breaks. The employees were also required to return to duty if requested by a supervisor. The employees' argument was that because they were on-call, they were never truly relieved of duty, and thus did not receive rest breaks.

The court, however, disagreed, reasoning that simply being subject to the control of an employer via on-call status does not qualify as "work." The court held that being on-call is a "state of being, not an action." The security guards, even though they were on-call, routinely took uninterrupted breaks where they would read, smoke or use the internet. Because the employer was not requiring the employees to work, there was no violation of the Labor Code.

Most employers can provide completely uninterrupted rest breaks for their workers, and thus this ruling has little impact for these businesses. However, if your business is such where employees must remain on-call, it's helpful to know that being "on-call" is not the same as "work" for purposes of rest breaks.

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. Chinowith St., Visalia, CA 93291 ( www.thecalifornialawyers.com).

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