Augustus v. ABM Security Services, Inc.
A rest period must be a true period of rest: employees must be relieved of all duties and of employer control — including any obligation to remain on call — so on-call rest breaks violate California law.
Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257
Wage & Hour
Rest Periods
On-Call
Section 226.7
Reversed
In brief. The Court held that California’s rest-period requirement means a genuine break free of work and of employer control. “[E]mployees must not only be relieved of work duties, but also be freed from employer control over how they spend their time,” and an employer “cannot satisfy its obligations . . . while requiring that employees remain on call.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 269–270.) “A rest period, in short, must be a period of rest.” (Id. at p. 260.)
Facts
Jennifer Augustus and a certified class of security guards worked for ABM Security Services. (2 Cal.5th at pp. 261–263.) ABM required guards to keep their pagers and radio phones on during rest periods and to “remain vigilant and responsive to calls when needs ar[o]se” — for example, to respond to emergencies, alarms, or tenant requests. (Ibid.) The guards were not necessarily interrupted during every break, but they were required to remain on call throughout. (Ibid.) The guards sued, contending these on-call breaks did not satisfy California’s rest-period requirement under the wage order and Labor Code section 226.7. (Id. at pp. 262–263.)
Procedural history
The trial court granted the employees summary judgment, awarding roughly $90 million. (2 Cal.5th at pp. 262–263.) The Court of Appeal reversed, reasoning that simply remaining on call did not constitute performing work. (Ibid.) The Supreme Court granted review and reversed the Court of Appeal, holding on-call rest periods unlawful. (Id. at pp. 263, 273.)
Issue
Does California law permit on-call rest periods — that is, may an employer require employees to remain on call and responsive during their rest breaks — or must rest periods be free of all duties and of employer control? (2 Cal.5th at pp. 260, 264.)
Holding
On-call rest periods are unlawful. “A rest period means an interval of time free from labor, work, or any other employment-related duties,” and “employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time.” (2 Cal.5th at p. 269.) The wage order and section 226.7 “prohibit on-duty . . . rest periods” and “require . . . that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties — including the obligation that an employee remain on call.” (Id. at pp. 269–270.) Because ABM required guards to remain on call, it violated the rest-period requirement. Court of Appeal reversed. (Id. at p. 273.)
Reasoning
1. “Rest period” means rest. Construing the wage order’s rest-period provision and section 226.7, the Court held the ordinary meaning of a “rest period” is “an interval of time free from labor, work, or any other employment-related duties.” (2 Cal.5th at pp. 264–269.) The provision’s purpose — protecting employee health and welfare by guaranteeing genuine respite — would be defeated if employers could fill the time with duties. (Ibid.)
2. Freedom from control, not just from tasks. The Court rejected the Court of Appeal’s narrower view that only performing actual work would violate the rule. (2 Cal.5th at pp. 269–271.) A rest period requires that employers “relinquish any control over how employees spend their break time.” (Id. at p. 269.) Requiring an employee to remain on call — to monitor a device, stay alert, and be ready to respond — is a form of employer control inconsistent with rest, even if no call comes. (Id. at pp. 269–271.)
3. On-call status burdens the break. The Court explained the practical realities: an on-call employee “cannot use the time effectively for his or her own purposes,” because the duty to respond constrains where the employee can go and what the employee can do (sleep, run errands, attend to personal matters). (2 Cal.5th at pp. 270–271.) That constraint converts the break into something other than a true rest period. (Ibid.)
4. Alternatives available to employers. The Court noted employers retain options: they can provide compliant off-duty rest periods (arranging coverage so others handle interruptions), or, if a rest period is interrupted or cannot be provided, pay the section 226.7 premium and/or seek any applicable exemption. (2 Cal.5th at pp. 271–273.) What an employer may not do is require employees to remain on call during the break without compensation. (Ibid.) Justice Kruger concurred in part and dissented in part, agreeing that genuine on-call duty is inconsistent with rest but parting ways on the breadth of the majority’s control analysis and certain applications. (Id. at pp. 273 et seq. (conc. & dis. opn. of Kruger, J.).)
Significance
Augustus is the controlling authority that California rest periods must be both off-duty and off-call. It has wide operational impact for industries that historically kept workers tethered during breaks — security, health care, retail, hospitality, and any setting using pagers, radios, or on-call coverage — and it drives staffing and coverage practices designed to free employees entirely during rest. The decision extends Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 from the “provide” framework into the substance of what a rest period must be, and it complements Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 in rejecting employer control over small but real increments of employee time. Unpaid rest-period violations carry the section 226.7 premium (a wage under Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094) and derivative exposure under the Naranjo line. See the Review’s coverage of the wage-and-hour line.
Key quotes
“A rest period, in short, must be a period of rest.” (Augustus, supra, 2 Cal.5th at p. 260.)
“[E]mployees must not only be relieved of work duties, but also be freed from employer control over how they spend their time.” (Id. at p. 269.)
Employers must “relieve their employees of all duties — including the obligation that an employee remain on call.” (Id. at p. 270.)
Read the full opinion (California Supreme Court — full text) →
Practice pointer
Attack the tether, not just the task. After Augustus, a rest-period claim succeeds by showing the employer required employees to remain on call — carrying a radio, pager, or phone, staying alert, or being ready to respond — even if no interruption actually occurred. Develop policies and testimony showing employees could not leave, relax, or use the time freely. The defense that “no work was actually performed” fails. Employers should arrange coverage so employees are fully relieved during rest, or pay the section 226.7 premium and document compliant breaks. Pair with Brinker (rest accrual and timing), Murphy (premium is a wage), and the Naranjo line (derivative wage-statement and waiting-time exposure).
Open questions
How far Augustus’s freedom-from-control principle reaches — for instance, brief or geographically limited on-call expectations, or arrangements where employees may leave the premises but must carry a device — continues to be litigated, as Justice Kruger’s separate opinion anticipated. The decision’s application to meal periods (where on-duty meal agreements are sometimes permitted) and to industries with genuine safety-coverage needs also remains an active area.
See also: Huerta v. CSI Electrical Contractors · Ward v. Tilly’s · Bradsbery v. Vicar Operating