On-Call Rest Periods Are Lawful, Appellate Court Rules

In a victory for California businesses, the 2nd District Court of Appeal has ruled in an unpublished opinion that on-call rest periods are lawful.

2nd Appellate Court Ruling

In Jennifer Augustus, et al. v. ABM Security Services, Inc., the 2nd District Court of Appeal reversed the trial court, concluding that “on-call rest breaks are permissible.” In forming its decision, the appeals court analyzed the Industrial Welfare Commission (IWC) Wage Order No. 4, and California Labor Code sections 226.7 and 512.

The California Chamber of Commerce filed a friend-of-the-court brief prepared by Greg Valenza of Shaw Valenza in this case.

The court found that while subdivision 11(A) of Wage Order No. 4 requires that an employee be “relieved of all duty” during a meal period, subdivision 12(A) of Wage Order No. 4, which pertains to rest periods, does not include a similar requirement.

The court emphasized that meal and rest break periods are different from one another; meal breaks are unpaid and rest breaks are mandated to be paid. This implies, the court wrote, that “rest periods are normally taken while on duty, i.e., while subject to employer control.”

The court determined that while Section 226.7 states that “An employer shall not require an employee to work during a meal or rest or recovery period,” simply being on-call does not constitute performing “work.” The court also referred to a California Division of Labor Standards Enforcement (DLSE) opinion letter in 1993 wherein the DLSE declined to “‘take the position that simply requiring [a] worker to [remain on call] is so inherently intrusive as to require a finding that the worker is under the control of the employer’ and must be compensated for ‘on-call’ time.”


Jennifer Augustus and others alleged on behalf of themselves and a class of similarly situated individuals that ABM Security Services, Inc. (ABM) failed to provide rest periods as required by California law because ABM required its security guards to keep their radios and pagers on during rest breaks, remain vigilant and respond to emergencies.

Although the plaintiffs offered no evidence that anyone’s rest period had ever been interrupted, and ABM’s submittal of declarations and deposition testimony of numerous employees, including the named plaintiffs, stated that they were provided and took uninterrupted rest breaks, the trial court ruled in favor of Augustus, concluding that an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call.

In 2012, plaintiffs moved for summary judgment on their damages claim, requesting that judgment be entered in favor of the class in the amount of $103.8 million, plus costs and attorney fees. The trial court awarded plaintiffs approximately $90 million in damages, interest and penalties.

CalChamber in Court

The CalChamber legal affairs unit files friend-of-the-court briefs on behalf of CalChamber members and key industries to emphasize the impact that judicial decisions would have on California’s economy.

For more information and to view past CalChamber in Court articles, visit www.calchamber.com/legalaffairs.

Staff Contact: Heather Wallace