Daily Blast January 29, 2015

The Court of Appeal, Second Appellate District, Division One (LA), published its opinion in Augustus v. ABM Security Services, Inc. (Jan. 29, 2015, B243788) __ Cal.App.4th ___, analyzing whether an employer is required to relieve their employees of all duties during rest breaks instead of requiring its guards to remain on call during breaks. (Slip opn., p. 2.) Specifically, the court analyzed “whether simply being on-call constitutes performing ‘work.’” The Court of Appeal held that it does not. (Id. at p. 10.)

Plaintiffs, security guards employed by ABM Security Services, Inc. (ABM), sued ABM for failure to provide uninterrupted rest periods because ABM required the security guards to remain on call during their rest periods. (Slip opn., p. 4.) The trial court granted plaintiffs’ summary adjudication motion finding that ABM failed to provide rest periods to its employees. (Id. at pp. 6-8.) Plaintiffs then moved for summary judgment on the issue of damages, which the trial court granted.

The Court of Appeal reversed holding that on-duty rest breaks are permissible. (Slip. opn., p. 17.) The court analyzed the nature of a rest period as provided in Labor Code section 226.7, which states that “[a]n employer shall not require an employee to work during a meal or rest period or recovery period.” (Id. at p. 10 citing Lab. Code, § 226.7.) According to the court, while plaintiffs were required to remain on-call during rest periods, they were permitted to engage in various non-work activities. (Slip opn., p. 10.) Simply being on-call does not constitute performing “work.” (Ibid.) Thus, the court concluded that “Labor Code section 226.7, contrary to the trial court’s ruling, prescribes only that an employee not be required to work on a rest break, not that he or she be relieved of all duties, such as the duty to remain on call. Remaining on call does not itself constitute performing work.” (Id. at pp. 16-17.) Accordingly, the trial court erred in granting plaintiffs’ summary judgment motion. (Id. at p. 19.)