Top Appellate Reversal: Augustus v. ABM Security Services

The debate over what constitutes a rest break in California paints a seemingly bright line rule against employers requiring employees to remain on call during paid rest breaks.

Such was the case in the outcome of Augustus v. ABM Security Services Inc., 2016 DJDAR 12608, where Justice Mariano-Florentino Cuellar of the state Supreme Court issued a 5-2 opinion that employers cannot interrupt workers' rest breaks by a call, text message or any other form of communication.

In 2005, plaintiff Jennifer Augustus and other former security guards with defendant ABM Security Services Inc., alleged on behalf of themselves and a class that ABM failed to relieve security guards of all duties during rest breaks required by California law. Instead, the plaintiffs alleged ABM required its guards to remain on call during breaks.

During discovery, ABM acknowledged it did not relieve guards of all duties during rest periods. According to the ruling, ABM required guards to keep their radios and pagers on, remain vigilant and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems and responding to emergency situations.

ABM opposed the plaintiffs' move in 2010 for summary adjudication, arguing that if it required anything at all during guards' rest periods, it was merely that guards remain on call by keeping radios and pagers on in the case that an incident required a response. The company provided examples of similar employees regularly taking breaks uninterrupted by service calls.

However, the trial court granted the plaintiffs' motion, concluding that an on-duty or on-call break is no break at all, and awarded $90 million in statutory damages, interest and penalties to the plaintiffs.

The court of appeal reversed, agreeing ABM did not relieve guards of all duties during rest periods, but said that state law does not require employers to provide off-duty rest periods and that "simply being on call" does not constitute performing work. So, the case went up to the high court with Cuellar to determine how to review this case as it pertained to Labor Code section 226.7 and Wage Order 4.

"To me it was just how different the litigants views were of what the rule was on a rest break," said Drew E. Pomerance, of Roxborough, Pomerance, Nye & Adreani LLP, who represented the plaintiff along with Michael B. Adreani and Marina N. Vitek. "It would seem pretty simple because the statute says you can't make them work on a rest break. We're very happy the Supreme Court says it our way. No work is no work."

Pomerance said they interpreted the statute literally.

"You have to take 10 minutes off," he said. "Meaning the worker is engaged in physical labor of the job, but if you're on call, ready, and under control, at the behest of the company, you can be doing your duties. [But] you smoke a cigarette, go on Facebook on your phone, you're on break. There's all these different permutations. This was really interesting and presented quite a legal challenge. You can go down a slippery slope."

? Matthew Sanderson