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Legislature Carves Out Exception to On-Call Rest Break Rule for Oil Industry

December 29, 2018

Posted in Employment Law

In the case of Augustus v ABM Security Servs., Inc. (2016) 2 C5th 257, the court held that the plaintiffs, security guards, need to be completely relieved of work obligations during their rest breaks. Their employer required them to be “on-duty” and “on-call” so they could return to work at a moment’s notice during their rest breaks.

Oil industry loophole

The Legislature has created an exception for those working safety related positions at facilities involved in the processing, refining, transport or storage of crude oil or petroleum products. Unlike the security guards in the Augustus case, these employees can be required to carry a communication device and respond to an emergency even when “on break” (though the employee must be paid for any interrupted or missed rest breaks).

Under the new law, an “emergency” is a situation or event that needs prompt or immediate intervention to prevent or respond to a disruption in normal operations (defined as an event that could cause harm to employees, equipment, the environment or the community). The law went into effect September 30 and is only effective through the end of 2020.

How restful must a rest break be?

For all other employers, the rule in Augustus applies. The lawsuit was filed by a group of security guards. The trial court found for the plaintiffs after the defendant admitted much of their claims. The decision was appealed and overturned by an appellate court because it viewed simply being on call not enough work to negate the rest break. That decision was overturned and the original decision reinstated by the state Supreme Court.

It ruled that employers are required to permit their employees to take off-duty rest periods under state statute and the Industrial Welfare Commission’s (IWC) wage order No. 4-2001. They couldn’t have their employees to remain “on call” during rest periods. During these required periods employers need to relieve employees of all duties and relinquish any control over how employees spend their break time.

During litigation ABM admitted it didn’t relieve guards of all duties during rest periods. It required them to keep their radios and pagers on, stay vigilant and respond when needs arose. The lower court agreed with the plaintiffs ABM had a policy of requiring its guards to remain on duty during breaks and that violated state law.

Plaintiffs’ rest periods were subject to employer control and the obligation to perform certain work-related duties so they were indistinguishable from the rest of their workdays. The court agreed with plaintiffs’ motion for summary judgment on damages, awarding about $90 million in damages, interest and penalties.

The Court of Appeal reversed the lower decision. It agreed defendant didn’t relieve guards of all duties during rest periods and instead required that they remain on call. But the court didn’t see state law as requiring employers to provide off-duty rest periods and the fact someone was on call didn’t mean the person was performing work.

The Supreme Court stated the IWC’s Wage Order 4 requires employers to provide a meal period of not less than 30 minutes once an employee has worked for five hours and unless the employee is relieved of all duty, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. The section pertaining to rest breaks makes no mention of being ‘on duty’ or not.

A rest break isn’t a rest break if it’s sufficiently controlled by the employer

The court found that an employer can’t satisfy its obligation to relieve employees from duties while controlling rest periods by requiring them to remain on call. The court admitted Wage Order 4 doesn’t provide a direct answer to the issue but it couldn’t reconcile the practice of requiring 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 periods…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…Given the practical realities of rest periods, an employer cannot satisfy its obligations under Wage Order 4…while requiring that employees remain on call.”

They reasoned an employee can’t go far if a rest period is only ten minutes long, so the short duration isn’t enough to show employer control. But if you add additional constraints of being on-call, remaining ready and able to be summoned to action, carrying a device or making arrangements so an employer can communicate with the employee, responding when the employer seeks to contact the employee and performing other work if the employer requests, these requirements “are irreconcilable with employees’ retention of freedom to use rest periods for their own purposes.”

The court stated an employer can reasonably reschedule a rest period as needed but, “A rest period, in short, must be a period of rest.”

If you have questions or concerns about the requirements for meal and rest breaks, contact our office at 714-415-2007 so we can discuss your situation and set up a consultation to talk about how they need to be handled and how to prevent a problem with employees breaks from becoming a legal problem.