CA Supreme Court Grants Cert. in Augustus v. ABM

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Employees and plaintiffs seeking rest breaks free from employer control received some good news from the California Supreme Court recently. On April 29, 2015, the California Supreme Court granted the plaintiffs’ petition for review in Augustus v. ABM Security Services, Inc. (“Augustus”). See 2015 Cal. LEXIS 2460 (April 29, 2015) (briefing available here and here).

As previously covered by the ILJ here, the California Court of Appeal, Second Appellate District, had affirmed the trial court’s certification of a class of security guards, but reversed the summary judgment and summary adjudication granted for rest break violations under the California Labor Code. Augustus v. ABM Security Services, Inc., 233 Cal. App. 4th 1065 (Cal. Ct. App. Dec. 31, 2014) (available here). In doing so, the Court of Appeal rejected the trial court’s view that an “on-call” rest break where an employee must respond to emergencies and calls is not a legally-compliant rest break under Industrial Welfare Commission (“IWC”) Wage Order No. 4. The Court of Appeal found that remaining available to work during a rest break “is not the same as performing work,” since the guards were freed from most of their work responsibilities during their rest breaks. Id. at 1082. This is a stark departure from previous Division of Labor Standards Enforcement (“DLSE”) opinion letters, the California Supreme Court’s previous definition of “work” under Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000), the California Supreme Court’s analysis of “providing” meal breaks in Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012), and the California Supreme Court’s analysis of “on-call time” in Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015).

The granting of the petition for review is significant for two reasons. First, pursuant to California Rules of Court 8.1105(e) and 8.1115, the Augustus decision is now depublished, so employers can no longer cite the Court of Appeal ruling as a basis for dismissing rest break claims in which the employee was “on-call” or otherwise subject to the employer’s control. Second, given the recent California Supreme Court decisions in this area, there is a significant likelihood that it will finally put to rest the argument that employers can continue to maintain control over employees during rest breaks merely because they remain on the clock during this time.

This is expected to be a closely-watched case by both the plaintiffs’ bar and defense counsel, as it implicates substantive wage-and-hour law.

Authored by: 
Arnab Banerjee, Associate