©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 229 7.9.4 Rest areas required Employers must provide a rest area, separate from toilet rooms, where the employee may choose to take the rest break, 285 and arguably must also allow employees to leave the work premises during rest breaks (see § 7.9.8 below). 7.9.5 Calculation of rest break time The DLSE has opined that employees must be permitted to take their ten minutes of rest in an uninterrupted block (e.g., one ten-minute break, not two five-minute breaks)286 and that the “net rest time” language prohibits an employer from counting as rest time any time that the employee must take to move from one work position to another, or to a rest area.287 7.9.6 Toilet breaks excluded The DLSE interprets the Wage Orders to forbid an employer to count any separate use of toilet facilities as a rest break. 7.9.7 Rest break time counted as hours worked The time spent on a rest break counts as working time.288 7.9.8 “On duty” rest breaks not permitted Because rest breaks count as time worked, one would think that an employee who takes a break while remaining on premises, available for emergencies, would still be receiving a valid rest break, so long as work demands do not actually interrupt the break. Yet in 2016 the California Supreme Court upset long-standing employer expectations on this issue in Augustus v. ABM Securities Inc. A Los Angeles trial judge ruled, in 2012, that security guards who must carry their pagers while on break were thereby denied their rest breaks, regardless of whether they were ever paged. The result was a judgment against the security company in an amount exceeding $100 million. In 2015, the Court of Appeal reversed the trial court, holding that on-call rest breaks are still valid rest breaks, unless the employer actually interrupts the break by calling the employee to duty during the break. The Court of Appeal noted that the standard was whether the employer had breached its duty “not [to] require an employee to work during a meal or rest or recovery period.”289 Thus, the Court of Appeal concluded that the employer, in merely requiring the security guards to be on call during breaks, did not breach this duty, because the guards could pursue personal activities during the breaks: “remaining available to work is not the same as actually working.”290 The California Supreme Court then agreed to review the case to address two issues: (1) Do Labor Code section 226.7 and Wage Order 4 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time? In 2016, the Supreme Court answered in an unexpected opinion that disrupted the sensible outcome reached by the Court of Appeal.291 Augustus adopted a simplistic, radical interpretation of the rest-break requirement that disregarded contrary longstanding Labor Code interpretations by the DLSE. The simplistic view adopted in Augustus is that a “rest period” must be “a period of rest,” which to the high court meant a period wholly free of any work duty. Augustus thus overturned long-settled employer expectations by announcing that rest breaks, like meal periods, must be completely “duty free”: an employee on a rest break who must be “at the ready, tethered by time and policy to particular locations or communications devices,” has not been afforded the statutorily required rest break. Under this radical view, as the dissenting opinion suggests,
RkJQdWJsaXNoZXIy OTkwMTQ4