In Augustus v. ABM Security Services, Inc. (Nos. B243788 & B247392, filed 12/31/14), the California Court of Appeal for the Second Appellate District held Labor Code section 226.7 prescribes only that an employee may not be required to work while on a rest break, but remaining available to work is not the same as performing work.

In Augustus, plaintiff employee filed a class action lawsuit on behalf of former security guards against employer ABM Security Services ("ABM"). Plaintiffs alleged ABM failed to provide rest breaks as required by California law, instead requiring its guards to remain on call during breaks. The trial court certified the class and granted plaintiffs' motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. The trial court later granted plaintiffs' motion for summary judgment on the issue of damages of $90 million. On appeal, the Augustus court affirmed the certification order but reversed the summary adjudication and summary judgment orders. The court reasoned the latter were based on a false premise that employers must relieve their workers of all duty during rest breaks.

In reaching its decision, the Augustus court referred to the text of section 226.7 which provides an employee may not be required "to work" during a break. The Court distinguished the plaintiffs' responsibilities when working and on-duty from those when on-call. A working, on-duty, security guard was required to actively observe and perform many tasks, such as greeting visitors and raising or lowering flags. In contrast, a security guard who is "on-call" during a rest period performs few, if any, of the activities performed by one who is actively on duty. Indeed, during rest breaks, ABM security guards were permitted to engage in various non-work activities, including personal telephone calls and surfing the internet. The Court concluded that while an on-call, guards must return to duty if asked to do so, remaining available to work is not the same as actually working.

Furthermore, the Court noted that while Industrial Welfare Commission (IWC) Wage Order No. 4-2001 requires an employee be "relieved of all duty" during a meal period, it contains no similar requirement with respect to rest periods. The Court also acknowledged that while Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1018 (Brinker) instructed an employee must be relieved of all duty during a meal period, it was silent regarding the employer's obligation to relieve an employee of all duty on a rest break.

Augustus therefore provides welcome clarity to questions left after Brinker regarding the employer's responsibility to relieve employees of all duties during rest periods.