230 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com merely requiring an employee on break to stay on premises, or to carry a radio in the case of an emergency, may make the rest break non-compliant, even if the employee’s break is never interrupted.292 In 2017, the DLSE responded to Augustus by revising its response to a frequently asked question about rest breaks, stating that now employers may not require employees to remain on the premises during their rest breaks: Q. Can my employer require that I stay on the work premises during my rest period? A. No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services … the California Supreme Court held that the rest period requirement “obligates employers to permit and authorize employees to take-off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.” … As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.293 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.294 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.”295 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.”296 The recovery period counts as hours worked.297 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.298 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 2026.299
RkJQdWJsaXNoZXIy OTkwMTQ4