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During the 4th of July festivities, another less known anniversary – and less celebrated by anyone with employees – took place. June 22 marked the six-month anniversary of Augustus v. ABM Security Services, Inc., the California Supreme Court decision mandating that employers provide employees with breaks that are completely off-duty and off-call.
By now, most employers have taken steps to protect themselves from so-called meal and rest break violations in the wake of the famous California Supreme Court case, Brinker Restaurant Corporation v. Superior Court, 53 Cal 4th 1004 (2012). In Brinker, the Court provided a bit of clarity on meal and rest break requirements and held, among other things, that while employers are required to provide meal and rest periods to employees, they are not required to ensure that employees take those breaks. Of course Brinker left many open issues for employers to navigate. However, so long as employers implement and follow clear written policies, Brinker has turned out to be manageable.
But the rules keep changing.
Six months ago, in Augustus, the California Supreme Court held that California law prohibits on-call or on-duty rest periods for employees, even in what would appear to be critical circumstances.
In Augustus, the Court evaluated whether a security company could require its employees—namely building security guards—to keep their radios and pagers on during break. The reason provided by the employer for such a requirement was that the building security needed to remain alert to activity in the building, and remain aware, for example, of emergencies, mechanical problems and tenant’s security needs. Seems reasonable enough, right? Apparently not.
The Supreme Court made it clear that, while employers may schedule rest periods where appropriate, they may not dictate what an employee does while on break.
In some industries, this decision will have a huge impact. Imagine your foreman, for example, charged with keeping his phone on hand, just in case of an emergency? What about the laborer you hired to keep a watchful eye on that open trench? What if your building is on fire? Your employee—who left his company radio or pager behind—may never know. Better hope the neighbors call the fire department.
What is an employer to do? While the Augustus decision requires navigation and policy change, there are ways to protect your business. In some circumstances, it may be appropriate to seek exemption from these requirements through the Division of Labor Standards Enforcement. In others, employers will need to put safeguards and procedures in place to cope with this new requirement.
Now that six months have passed since the Augustus decision, it also begs the question: what’s in your handbook?
By: Sarah A. Perry