©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 231 Augustus imposes extraordinary burdens on businesses that need to have workers on call for emergencies while needing them in practice only rarely. Private ambulance operators, arguing that fully complying with Augustus would cost municipalities tens of millions of dollars, induced California voters to pass Proposition 11 in 2018, to provide that ambulance operators can require ambulance employees to remain on call during meal and rest breaks in order to respond to 911 calls, with employers to reschedule breaks that were actually interrupted. Despite Augustus, the dust has not settled as to whether employees must be allowed to leave the premises during rest breaks. In fact, some courts have recently limited Augustus to its facts (e.g., on-call security guards), indicating that there is not necessarily a requirement to allow offsite rest periods.282 7.9.9 Federal Aviation Administration Authorization Act preemption? Employers of truck drivers had hoped that California meal- and rest-break requirements were preempted by the Federal Aviation Administration Authorization Act of 1994, but those hopes were dashed in 2014. (See § 7.8.7). 7.9.10 Federal Motor Carrier Act preemption? In 2021, the Ninth Circuit affirmed the Federal Motor Carrier Safety Administration’s (FMCSA) 2018 determination that its hours-of-service regulations for commercial motor vehicle drivers preempt California rules for meal and rest breaks. (See § 7.8.7). 7.9.11 Recovery breaks As of 2014, California employers must afford employees a “recovery period,” to “prevent heat illness.”283 Employers must not require employees to work during a recovery period that is “mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division or Occupational Safety and Health.”284 The recovery period counts as hours worked.285 7.9.12 Exemption for safety-sensitive positions at petroleum facilities Certain unionized workers who hold “safety-sensitive positions” at petroleum facilities are exempted from restbreak rules.286 A “safety-sensitive position” is a position whose duties reasonably include responding to emergencies in the facility and carrying communication devices. In 2020 the Legislature extended this special exemption until 2026.287 The exemption applies only to workers covered by a collective bargaining agreement and subject to Wage Order 1. If such a worker’s rest period is interrupted to respond to an emergency, then the employer must pay the worker one hour of pay. 7.9.13 Exemption for certain security officers In 2020, perhaps inspired by the special exemption for certain petroleum workers, the Legislature created a restbreak exemption for unionized registered private patrol operators. Yielding to the common sense that it furthers the public interest to have security officers who can respond to emergency situations without delay, the new law permits employers to require certain security officers to remain on the premises and on call during paid rest periods, and to carry and monitor a communication device. Affected security officers can, consistent with the employer obligation to provide rest breaks, be required to remain on the premises during rest periods, to remain on call, and to carry and monitor a communication device, so long as the security officer can restart a rest period anew as soon as practicable if the rest period is interrupted.288
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