Supreme Court to employers: a rest break means exactly that

By Signal Contributor

Last update: Tuesday, February 21st, 2017

By Carl Kanowsky

Bob had been working for Dove of Peace Security, an armed response private security firm, as a guard for the past 10 years. He’s been noticing recently some changes in the way Dove worked its guards.

Before, whenever he took his lunch or rest breaks, he always carried his pager and company-issued cell phone. That way, in case there was an emergency or if somebody just wanted to know where the heck he was, they were able to reach him. It didn’t happen very often, but occasionally he would get a call to respond to a burglar alarm or the panicked call of some client.

About five years ago, things started to change. He no longer was required to have his pager or cell phone with him when he went to lunch. In fact Dove made a big point of telling him not to worry about what was going on with the job while he was eating. This was great. He could actually relax.

But the same couldn’t be said for the breaks. He still had to have his pager. He actually got written up because his boss caught him without it during one of his breaks. But he figured there wasn’t much he could do about it, so he’d just cope.

Then he learned he received an early Christmas present. And he also figured out why he was able to take uninterrupted meal breaks.

In 2012, the California Supreme Court in the Brinker case ruled that the wait staff at restaurants had to be given a meal break free from disturbance by their employers. In other words, they couldn’t be called to help out on a short shift, clear tables or to do anything else. Their employer had to give them that time completely off duty.

Then, Bob learned, that a woman had sued a huge security company, saying that she really wasn’t given rest breaks because she always had to be available in case anything happened during the break. Jennifer Augustus worked for ABM Security Services.

ABM required their guards to keep their pagers and radio phones on even during rest periods. Apparently to Jennifer, this did not seem like a real rest break. And, after 11 long years of litigation, the California Supreme Court agreed with her, costing ABM $90 million.

The court said that employers have to give their employees the time off during their rest break. “What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employers spend their break time.”

For Jennifer, and consequently for Bob, this meant that they did not have to carry pagers or to be within a certain area so that they could respond in case something happened.

Okay, fine, said ABM, but can we at least keep the guards on call but relieve them of any duties during their rest breaks? The answer from the Supreme Court was a resounding no.

“One cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest period.”

So now, virtually all employers must leave their employees alone during their two 10-minute rest breaks. No more requiring them to take the break in the lunch room next to the phone or requiring the clerks in the grocery store remain in the store during breaks. The employer has to give their employees a real rest break.

Failure to do that can lead to a penalty against the employer of one hour of pay for every rest break missed.  Now Bob knew why suddenly he was able to take his breaks in peace.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Mr. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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Supreme Court to employers: a rest break means exactly that

By Carl Kanowsky

Bob had been working for Dove of Peace Security, an armed response private security firm, as a guard for the past 10 years. He’s been noticing recently some changes in the way Dove worked its guards.

Before, whenever he took his lunch or rest breaks, he always carried his pager and company-issued cell phone. That way, in case there was an emergency or if somebody just wanted to know where the heck he was, they were able to reach him. It didn’t happen very often, but occasionally he would get a call to respond to a burglar alarm or the panicked call of some client.

About five years ago, things started to change. He no longer was required to have his pager or cell phone with him when he went to lunch. In fact Dove made a big point of telling him not to worry about what was going on with the job while he was eating. This was great. He could actually relax.

But the same couldn’t be said for the breaks. He still had to have his pager. He actually got written up because his boss caught him without it during one of his breaks. But he figured there wasn’t much he could do about it, so he’d just cope.

Then he learned he received an early Christmas present. And he also figured out why he was able to take uninterrupted meal breaks.

In 2012, the California Supreme Court in the Brinker case ruled that the wait staff at restaurants had to be given a meal break free from disturbance by their employers. In other words, they couldn’t be called to help out on a short shift, clear tables or to do anything else. Their employer had to give them that time completely off duty.

Then, Bob learned, that a woman had sued a huge security company, saying that she really wasn’t given rest breaks because she always had to be available in case anything happened during the break. Jennifer Augustus worked for ABM Security Services.

ABM required their guards to keep their pagers and radio phones on even during rest periods. Apparently to Jennifer, this did not seem like a real rest break. And, after 11 long years of litigation, the California Supreme Court agreed with her, costing ABM $90 million.

The court said that employers have to give their employees the time off during their rest break. “What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employers spend their break time.”

For Jennifer, and consequently for Bob, this meant that they did not have to carry pagers or to be within a certain area so that they could respond in case something happened.

Okay, fine, said ABM, but can we at least keep the guards on call but relieve them of any duties during their rest breaks? The answer from the Supreme Court was a resounding no.

“One cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest period.”

So now, virtually all employers must leave their employees alone during their two 10-minute rest breaks. No more requiring them to take the break in the lunch room next to the phone or requiring the clerks in the grocery store remain in the store during breaks. The employer has to give their employees a real rest break.

Failure to do that can lead to a penalty against the employer of one hour of pay for every rest break missed.  Now Bob knew why suddenly he was able to take his breaks in peace.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Mr. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.

Signal Contributor

Signal Contributor