Just prior to Christmas, the Supreme Court of California, in a split decision [see Augustus v. ABM Security Services, Inc., 2016 Cal. LEXIS 9627 (Dec. 22, 2016)], held that it was a violation of Cal. Lab. Code, § 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001, subd. 12(A), to require that security guards keep their pagers and radio phones on and that they remain vigilant and responsive to calls when needs arose during their rest periods. The high court added that under California law, employers relinquish any control over how employees spend their break time; a rest period must be a period of rest.
California’s Rest Break Requirements
While rest breaks aren’t actually addressed in California’s Labor Code, the state’s IWC’s industry-specific Wage Orders require employers to authorize and permit their non-exempt employees to take a net 10-consecutive-minute rest break for each four hour work period or major fraction thereof. Insofar as it is practical, the rest breaks should be taken in the middle of each four-hour work period.
Some HR officials say that rest and meal breaks make scheduling difficult. For example, if a business has just one person working at any given time, it is impossible to keep the business open and allow a complete break in duties for the employee. In the past, some businesses have allowed the employee to take breaks (if business allowed), subject to being called back to the job if necessary. That practice runs afoul of the Augustus decision.
Your Business May Inadvertently Violate the New Augustus Rule
Legal experts caution that the HR practices at many businesses may now violate this new Augustus rule. Here are four pointers to help you comply with the Augustus decision.
Pointer 1: Review all Employee Handbooks
The Augustus majority stresses that the plain meaning of the word “rest,” as well as other language in the Wage Order and Labor Code, caused it to conclude that rest breaks need to be off-duty. Employers may not require an employee to work during any meal or rest period. Make certain your employee handbooks reflect this.
Pointer 2: Relieve Employees of all Duties During Breaks
All too many employers have one policy in print and another in practice. Having the appropriate language within your employee handbooks is useless if your practices are inconsistent with the rules that you have set. During breaks, relieve employees of all duties. Discontinue the use of on-call duties during rest breaks. Recognize that you may have to shift work schedules to accommodate this requirement.
Pointer 3: Allow For Rest Break Premiums if There is No Alternative
If the demands of work are such that employees cannot take the required rest break, employers should have a system in place to compensate the employee the applicable “wage premium” of one hour of pay (at the employee’s regular rate of pay) for any violations.
Pointer 4: Counsel Supervisors Not to Disturb Employees During Breaks
Many employers need to have short training sessions with supervisors to make certain they understand the implications of the Augustus decision. In Augustus, the trial court awarded the class of aggrieved employees $90 million in statutory damages, interest, and penalties. Take the time to train those in charge that the new rules are strict and must be followed.
Augustus is a Significant Decision
Legal experts agree that the Augustus decision is a significant one. Employers who have questions about its ramifications may wish to consult an employment law attorney for clarification. If your firm has historically utilized “on-duty” or “on-call” rest breaks, you should consult an expert to evaluate strategies to avoid potential liability.
For years now, CKB VIENNA LLP has represented all sorts of businesses in employment law matters, including those related to wage and hour issues. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.