“We next consider the second question raised by the parties: can an employer satisfy its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call? The answer, we conclude, is no — and an analysis of the regulatory framework, as well as the practical realities of rest periods, shows why. Neither Wage Order 4 nor section 226.7 provides a straightforward answer to whether on-call rest periods are permissible. Neither mentions on-call time at all, let alone on-call rest periods. (But see Wage Order 4, subd. 5(D) [providing that reporting-time pay requirements ―shall not apply to an employee on paid standby status who is called to perform assigned work‖].) Nonetheless, one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.”
“ABM recognizes that the employer has a break-related obligation to its employees. But it suggests that we define that obligation by distinguishing between, on the one hand, requiring a guard to work and, on the other hand, requiring a guard to remain on duty or on call. It would also have courts determine whether an on-call obligation unreasonably interferes with an employee‘s opportunity to take an uninterrupted rest period. This proposed course would result in less clarity and considerably greater administrative complexities. And it makes for an awkward fit with section 226.7‘s text, which forbids employers from requiring employees to work during any meal or rest period, and Wage Order 4, which requires employers to provide rest periods and explicitly indicates that employees must generally be relieved of all duty during meal periods (Wage Order 4, subd. 11(A)). Several options nonetheless remain available to employers who find it especially burdensome to relieve their employees of all duties during rest periods –– including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7.”
Augustus v. ABM Security Services (Cal. Sup. Ct. Dec. 22, 2016) 2016 S.O.S. 6553. Click here for full opinion.