New Clarification on Rest Period Requirement- a Grinchy Present for California Employers
By: Theodore E. Bacon, Esq.
So you are a good employer, you give all of your employees the required paid 10 minute break twice a day, pretty close to the middle of each four-hour work period. But sometimes emergencies come up, a flood of customers walk in, a crisis occurs and you need your employee to jump in and handle an issue. So you tell them "Go ahead and take your rest period but please keep your phone on so I can get you if the need arises. And if something does happen, we'll give you a full rest period later." That sounds fair, doesn't it?
Not according to the California Supreme Court.
All employers need to be aware of the
Augustus v. ABM Securities case handed down on December 22, 2016. In that case, while ABM Securities allowed its security guards the proper 10 minutes breaks, they told them that they had to keep communication devices on during the rest periods in case of an emergency requiring security. In reversing the Court of Appeal, the California Supreme Court said that during a rest period, the employer must relieve the employee of "
all duties and relinquish any control over how employees spend their break time." In short, the reasoning given was that forcing the employee to be on alert for a possible phone call during the break is not really a "rest". A proper rest period requires the employee to be entirely relieved of all duties.
So can employers require employees to stay on site during their rest period?
Likely not. While employees can't go far in 10 minutes, this case says employers must relinquish any control over employees during their rest period.
What if employees leave the work premises and return late from the rest period?
Employers can discipline employees and/or dock them their pay, but it is likely not worth it to dock an employee's pay unless you have written proof of when they began and ended each rest period, which most employers don't keep since the rest period is paid.
Can employers ask employees to answer a page or phone call?
If employers do this, then it is as if there was no rest period and the employer will owe the employee one hour's pay. The requirement is to relieve employees of all duties.
While employers need to be sure to follow these guidelines in practice, it is of critical importance to immediately review all written policies to be sure that there are no restrictions whatsoever as to what an employee can do on their rest break.
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