No On Call or On-Duty Rest Periods in California

On December 22, 2016, the California Supreme issued a blockbuster opinion in the case of Augustus v. ABM Security Services, Inc. (S224853).  As described more fully below, the Court held that California law prohibits both “on call” and “on duty” rest periods.  On call rest periods are those in which an employee is available by phone or by radio.  On duty rest periods are those in which the employees continue to perform some job duties.  For example, the plaintiffs in Augustus claimed that:

ABM required guards to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The holding in Augustus means that employers must relieve their workers of all duties, and relinquish all control over them during their breaks.  As such, Augustus is consistent with the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  Like BrinkerAugustus is a huge win for workers.

ABM, the employer in Augustus hired security guards, and required them to keep their radios and pagers on during their rest periods.  ABM also required their guards to respond to calls during their breaks.  The plaintiffs sued, claiming that such breaks were not adequate rest periods under California law.  The trial court agreed, awarding the plaintiffs $90 million in damages.  The court of appeal reversed.  The California Supreme Court then reversed the court of appeal.

No On-Duty Rest Periods

The Court begins its analysis of on duty rest periods by noting that the purpose of the California Labor Code and the Industrial Welfare Commission Wage Orders is to protect employees.  With respect to on-duty rest periods, the Court found that nothing in the relevant Wage Order permitted employers to offer them.  The Court compared section 12 of the Wage Orders, which applies to rest periods and does not refer to on-duty breaks, with section 11, which applies to meal periods and allows on-duty breaks in certain situations.  The Court also noted that because rest periods are paid, when a worker takes an on-duty rest period he or she essentially performs free work.

No On Call Rest Periods

The Court then turns to on call rest periods, and notes that nothing in either the Wage Order or Labor Code section 226.7  mentions or permits them.  This is because rest periods must be free from all labor, work, and other employment-related duties.  They must also be free from all employer control over how the workers spend their time.

Under Brinker, the Wage Orders, and Labor Code section 226.7, workers are entitled to one paid ten minute rest period for every four hours worked.  The right to a rest period kicks in at three and a half hours.  If a worker works more than six but less than 10 hours, they are entitled to two paid ten minute rest periods.  And if a worker works more than 10 b hours, they are entitled to three paid ten minute rest periods.

Now, after Augustus, it is clear that these rest periods must be off duty and cannot be on call.  This will help to ensure that workers get the breaks that they are entitled to under law.

If you have questions about your rest breaks, feel free to contact the attorneys at Hunter Pyle Law for a free consultation.  We can be reached at or 510.444.4400.