On-Call Meal Breaks and On-Call Rest Breaks:  A Critical Difference

The law regarding meal and rest breaks continues to develop.  As it develops, it becomes more and more technical.  A recent decision of California’s Second Appellate District highlights a critical difference between meal and rest breaks.Gear-and-Gavel_dark-blue

In Augustus v. ABM Security Services, Inc., a group of security guards sued their employer for missed rest breaks.  The guards’ theory of liability was relatively simple:  ABM permitted them to take rest breaks, but required them to be on-call while they took their breaks.  While they were on-call, the guards had to keep their radios and pagers on.  They also had to respond to any issues that arose, including emergencies and other situations.

The trial court granted class certification, and then found in favor of the guards.  The judge concluded that, “[p]ut simply, if you are on call, you are not on break.”  He then awarded approximately $90 million in damages and $27 million in attorneys’ fees.  ABM appealed.

California Law Permits On-Call Rest Breaks

In Augustus, the Second District Court of Appeal looked closely at the nature of a rest break.  The court noted that the applicable Wage Order required rest periods, but did not explain what a rest period was.  In particular, the Wage Order did not indicate whether on-call rest breaks were permissible.

The court then turned to Labor Code section 226.7, which provides that an employer may not require an employee “to work” during a meal or rest break.    Given the language of section 226.7, the critical issue was whether being on-call was the same thing as performing work.  If so, then under Labor Code section 226.7, an on-duty rest break was not allowed.

The Augustus court held that being on-call was not the same thing as performing work.  The court began its analysis by noting that a guard’s duties while on duty were different than his or her duties while on-call.  For example, while on duty a guard was required to greet visitors and monitor traffic.  An on-call guard was not required to perform these duties.

The court then compared section 12(A) of the applicable wage order, which governs rest breaks, to section 11(A), which governs meal breaks.  Section 11(A) explicitly states that an employee must be “relieved of all duty” during meal breaks.  Section 12(A) does not contain this language with respect to rest breaks.  Therefore, the court concluded that the Industrial Welfare Commission, which enacted the wage orders, did not intend workers taking rest breaks to be relieved of all duty.

The Plaintiffs in Augustus raised a series of arguments, all of which the court shot down.  First, the court rejected the plaintiffs’ attempt to rely upon a 2002 DLSE opinion letter.  That letter concluded that an employer could not use time during which employees were required to move from one work station to another to meet its rest break requirements.  Additionally, the court noted that in that particular situation, no single move had been ten minutes long or longer, and that an employer could not aggregate shorter rest breaks to meet its ten net minutes requirement.

Second, the court considered the discussion of duty in Brinker v. Superior Court.  The court found that that discussion pertained only to meal breaks, and did not bear upon rest breaks.


Unless the California Supreme Court grants review, the court’s holding in Augustus creates a critical difference between rest breaks and meal breaks.  Employees cannot be on-call during meal breaks.  However, they can be on-call during rest breaks.


Individual Issues Regarding Damages Do Not Defeat Class Certification


With respect to class certification, the Augustus court upheld the trial court’s order certifying a rest break class.  The court concluded that ABM had a uniform policy requiring its guards to remain on call when they took their breaks.  Although this policy was not written, the court concluded that it existed in light of deposition testimony and other evidence.


The court reached this holding despite that fact that ABM had introduced evidence that its policy was not uniformly applied.  The court noted that such evidence would ultimately go to the issue of damages.  However, individual issues regarding damages do not defeat the community of interest required for class certification.


The attorneys at Hunter Pyle Law have handled numerous individual and class actions involving rest breaks.  These cases include a class action on behalf of bus drivers that settled for $2 million.  If you have questions about your rest breaks, or wish to speak with an attorney about rest breaks or any other issue in your workplace, please feel free to call us at 510.444.4400 for a free consultation.  You can also email us at inquire@hunterpylelaw.com.