On Decem­ber 22, 2016, the Cal­i­for­nia Supreme Court, in Augus­tus v. ABM Secu­ri­ty Ser­vices, Inc., held that employ­ers can­not require employ­ees to remain on call dur­ing paid rest peri­ods. The court reit­er­at­ed the stan­dard estab­lished in Brinker Restau­rant Corp. v. Supe­ri­or Court, 53 Cal. 4th 1004 (2012), which clar­i­fied that dur­ing rest peri­ods employ­ees must be relieved of all duties and be free from employ­er con­trol as to how they spend their time. How­ev­er, Augus­tus went even fur­ther by hold­ing that if employ­ees are required to remain on call and avail­able for pos­si­ble inter­rup­tion dur­ing the break, then it is not a true rest peri­od nor is such a pol­i­cy com­pli­ant with Cal­i­for­nia law. Accord­ing to the court, the mere require­ment of an employ­ee to remain avail­able for inter­rup­tion inval­i­dates the rest peri­od, regard­less of the employ­ee being com­pen­sat­ed for his or her time. As a result, employ­ers must review their cur­rent work­place poli­cies deal­ing with paid rest peri­ods and ensure employ­ees are not required to remain on call or on duty dur­ing paid rest periods.

Real­is­ti­cal­ly, rest peri­ods may get inter­rupt­ed and this inter­rup­tion neces­si­tates an employer’s reme­di­al action. For instance, after an inter­rup­tion an employ­er may allow the employ­ee to restart his or her unin­ter­rupt­ed paid rest peri­od. Or if the rest peri­od is missed then, as required by law, an employ­er must make sure to pay the employ­ee one hour of pay in his or her next pay­check for each work­day that the rest peri­od was not pro­vid­ed. The key to the Augus­tus deci­sion is that employ­ees can­not be required to remain on call. Of note, the deci­sion does not pre­vent employ­ers from requir­ing employ­ees to remain on premis­es dur­ing paid rest peri­ods, but rather that employ­ees can­not be on call.

 

Orig­i­nal­ly pub­lished by ThinkHR — Read More