Rest Break Compliance in California after Augustus v. ABM Security Services, Inc.

Churches, Employment, HR, Non-exempt, Nonprofit, Payroll, Wage and Hour by
Your church or nonprofit organization’s rest break policy for California employees may need to be revised in light of a recent court ruling. On December 22, 2016, the California Supreme Court, in the matter of Augustus v. ABM Security Services, Inc., concluded that a nonexempt employee must be completely off-duty while taking a rest break and may not be “on-call” during the break. Specifically, the court held the employer violated the law when it required its 15,000 security guard employees to be on-call by carrying pagers and radios during their rest breaks in case they needed to respond to an emergency. If the trial court’s ruling is reinstated, judgment against the employer will be $90 million in damages, interest, and penalties.

What this means for your organization
First, let’s review California’s rest break law. California law requires employers to authorize and permit nonexempt employees to take an uninterrupted, 10-minute rest break every 4 hours worked or major fraction thereof. Specifically, employers must provide:
  • one 10-minute rest break for shifts from 3½ to 6 hours in length,
  • two 10-minute rest breaks for shifts lasting more than 6 hours to 10 hours,
  • three 10-minute rest breaks for shifts lasting more than 10 hours to 14 hours, and so on.
Rest breaks must fall in the middle of each work period insofar as it is practicable. Employees should not clock out for a rest break, as it is a paid break. The breaks should not be combined or used to start late or leave early. The consequence of a missed rest break requires the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a rest break is not properly provided. See Labor Code § 226.7. These requirements can be found in the California wage order that corresponds with the employee’s occupation or industry (see e.g. Section 12 of Industrial Welfare Commission Wage Order No. 4). In light of the Augustus decision, in addition to the above requirements, your organization should ensure its rest break policy prohibits employees from being on-call, and that they are completely off-duty for each break.

How to ensure compliance
Your organization should have a sound written policy drafted with the assistance of legal counsel. Managers should be properly trained on the policy, and the policy should clearly be communicated to employees. Some other good practices include:
  • Scheduling rest breaks
  • Relinquishing all control over how the time is spent
  • Having timekeeping records reflect that the rest break was provided to the employee (though the employee should not clock out since the break is paid)
  • Regularly auditing timecard records to determine if employees are accurately reporting time and breaks taken
  • Properly documenting missed breaks
  • Promptly paying employees the premium for any missed break
  • Taking appropriate corrective action pursuant to employer policies
Complying with rest break law warrants significant attention, especially because an employee has up to three, and sometimes four, years to file a claim for a missed rest break. It would be quite a burden for a nonprofit to pay four years’ worth of rest break premiums for failing to comply, especially if such a violation is excluded from coverage under the organization’s insurance policy (which may be the case). Accordingly, you should consult with a California attorney experienced in labor and employment law to advise on your organization’s rest break policy and practices.

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