Independent Contractor

Employers Cannot Control Rest Breaks

Rest Breaks – Controlled or Uncontrolled?

I previously wrote about  Augustus v. ABM Securities, where an appellate court said employers could require employees to remain “on-call” during paid rest breaks. I cautioned that the case was on appeal, and the Supreme Court could reach a different conclusion. It did. The California Supreme Court concluded:

state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

Employers Must Relinquish All Control During Rest Breaks

This is an important case for employers and employees because it provides clear guidance regarding required rest breaks. ABM Securities required its security guards to carry pagers, phones and/or radios. The security guards had to keep the pagers, radios or phones with them at all times; including mandatory paid rest breaks. If an emergency occurred during the rest break, the guard had to respond. Although infrequent, interruptions happened. The guards argued that because they were not relieved of all duty during the rest periods, the guards never actually received required rest periods. The trial court agreed, awarding $90 million to the entire class. The appellate court disagreed. The Supreme Court said the trial court got it right: “state law requires employers to provide their employees with rest periods that are free from duties or employer control.”

The court distinguished meal breaks from rest breaks. The wage orders allow for “on-duty” meal breaks in certain situations. There is no similar provision for rest breaks. The Supreme Court concluded that the IWC knew how to include a provision for on-duty breaks. Since no on-duty rest period provision exists, the IWC obviously did not intend to allow on-duty rest periods.

This case will pose a problem for situations where an employee cannot easily take required rest breaks. You can expect to see more “Be Back in 10 Minutes” signs in gas stations or stores where only one worker is on duty.

Exemptions from Rest Breaks?

A little known–and likely seldom used–option for employers is to request an exemption from the Labor Commissioner. For example, section 17 of Wage Order 5 states:

If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee’s representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division.

I’ve never gone through the exemption request process, so I don’t know how likely the Division will grant the exemptions, but ABM Securities had such an exemption for two years. I don’t know if they forgot to renew the exemption, or if the Division refused to extend the exemption. If you are an employer struggling with how to relieve employees of all duties for required rest periods, you may want to consider applying for an exemption.

If you have any questions about your meal or rest break policies, feel free to contact the Nuddleman Law Firm, P.C.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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