Augustus v. ABM: Awaiting Cal. Supreme Court Ruling on Rest Break Case

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For many workers, the California Supreme Court decision in Augustus v. ABM will determine if they continue to enjoy the right to off-duty rest breaks (previously covered on the ILJ here and here). In September 2016, the court finally heard oral arguments from one of the most significant employment cases of this session. The Augustus case has been closely watched and the ruling is expected to have a significant impact on the rights to rest breaks for a large portion of California’s work force.

Augustus originates from a trial court victory by a certified class of security guards who were required to remain “on call” to respond to emergencies or other incidents during their 10-minute rest breaks. The trial court held that, because the guards were not completely relieved of all duty during their breaks, the guards remained “under ABM’s control” during this time (such as by having to carry and monitor communication radios) and, thus, were not afforded an off-duty break as required by California law. Order re: Cross Motions for Summary Judgment/Adjudication and Defendant’s Motion to Decertify Class, No. BC 336416 (Dec. 23, 2010), at 4-7 (slip op. available here). The trial court based this finding on the California Supreme Court’s earlier holding that “time that the employee is subject to control of the employer is work time and must be paid [Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)].” Slip op. at 5. The trial court reasoned that, accordingly, “a rest period must not be subject to employer control; otherwise a ‘rest period’ would be part of the work day for which the employer would be required to pay wages in any event.” Slip op. at 7. The inevitable conclusion reached by the trial court was that “[p]ut simply, if you are on call, you are not on break.” Augustus v. ABM Security Services, Inc., 2014 Cal. App. LEXIS 1209, at *11.

The Court of Appeal reversed the trial court, and ruled in favor of the employer ABM. Rather than following the “subject to control” definition of “work” long used in California, the appellate court instead proposed a dual definition of the term never previously utilized under California law. Citing the 70-year-old Fair Labor Standards Act (FLSA) case of Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590 (1944), the Court of Appeal reasoned that the term “work” is used as a verb in section 226.7, not as a noun as in the definition of “hours worked” in Wage Order No. 4, and that when used as a verb, “work” “means exertion on an employer’s behalf.” Augustus v. ABM Security Services, Inc., 2014 Cal. App. LEXIS 1209, at *17. The court then concluded that because “[o]n-call status is a state of being, not an action [and] 226.7 prohibits only the action, not the status,” the security guards had not been “required to work” during their rest breaks in violation of section 226.7. Id.

The problems flowing from the Court of Appeal’s logic are manifest. Many jobs consist primarily of watching and waiting for something to happen.  If a security guard performing his required job duty of waiting for something to happen could be considered “on break” so long as no actual incidents occur during any ten minute stretch, then a drive-thru cashier manning her window could be considered “off-duty” so long as no customers arrive during any 10-minute stretch. Likewise, an ambulance dispatcher sitting at his post waiting the next 911 call could be considered “off duty” so long as no call comes for a stretch of 10 minutes. And same for the receptionist sitting at her desk or the shoe salesman waiting for his or her next customer. Once the act of observing a work station, being prepared and ready to respond to the next customer, phone call, or emergency is defined as “not work,” the very concept of a rest break is functionally eliminated for a large segment of California’s workforce who, in reality, are required to be “on-call” and ready to respond as part their regular work duties.

Fortunately for California employees, in other recent decisions the California Supreme Court has signaled its support for the Augustus plaintiffs’ position. In another action involving security guards who were required to remain on-call overnight, California’s highest court found that “on-call hours constituted compensable hours worked and, further, that [the employer] could not exclude ‘sleep time’ from plaintiffs’ 24-hour shifts.” Mendiola v. CPS Security Solutions, 60 Cal. 4th 833, 838 (2015). Promisingly, the court found that the “extent of the employer’s control” standard was determinative of “whether on-call time constitutes hours worked.” Id. at 840. The court further found that employees could be deemed to be performing compensable “work” even while they “wait for something to happen,” noting that “[r]eadiness to serve may be hired, quite as much as service itself.” Id. Based on these principles, the court concluded that security guards’ “on-call” time was “time worked” and compensable.

The employment law community now awaits the California Supreme Court’s decision on this issue. Undoubtedly, the holdings therefrom will carry significant ramifications for the California workplace for years to come.

Authored By:
Matthew Bainer, Senior Counsel