In the state of California, employees enjoy considerable employment rights that include wage-and-hour rights, anti-harassment and anti-discrimination rights, sick leave and family leave, and the rest periods and lunch breaks that are essential for keeping workers energized and productive. California law entitles most workers in the state to a ten-minute break every four hours. But if an employee has to remain “on-call” for work during a break, is it a genuine rest period? Precisely what constitutes a legal rest break under California law?

In an effort to clarify what has for years been confusing legal territory, the California Supreme Court finally addressed the question of rest breaks late in 2016. Specifically, if employees are compelled to remain on-call and available to employers as needed, can that time constitute rest break time under the law? Security guards, for instance, are often required by employers to stay alert and available even if they are on break. But is that really a rest break under the California labor code?

The case under consideration by the California Supreme Court actually began back in 2005 with a California labor lawsuit filed by Jennifer Augustus, who had been a security guard for ABM Security Services, a firm that provides security and other building services. According to court records, ABM Security Services required its security guards “to keep their radios and pagers on, to remain vigilant and to respond when needs arise” during a rest break. Did ABM’s rest break policy violate California labor law? Ms. Augustus believed that it did, and she filed a class action lawsuit against ABM Security Services on behalf of all of its security guards.

WHAT DID THE TRIAL COURT DECIDE REGARDING THE ABM POLICY?

In 2012, a trial court in Los Angeles agreed with Ms. Augustus, and the court awarded approximately $90 million to about 15,000 current and former ABM security guards. However, the trial court’s decision was quickly overturned. ABM Security Services appealed the ruling, and in 2014, the California Court of Appeal for the Second District, while agreeing that the law in California prohibits “working during a rest break,” also ruled that “remaining available to work is not the same as performing work.”

Finally in 2016, the California Supreme Court assessed both courts’ findings and reversed the ruling of the Court of Appeal. California’s Supreme Court justices found that under California law, employers are required to provide rest periods that allow employees to be genuinely and entirely at rest and off-duty. An employee who is on-call is not off-duty, said the justices, so they ruled that ABM Security Services had in fact violated California labor law. The state’s Supreme Court also restored the trial court’s $90 million award to the current and former ABM security guards.

The court stated: “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 periods.” Security guards at ABM were still performing work duties during their so-called rest breaks that included “carrying a device or otherwise making arrangements so the employer can reach the employee during break, responding when the employer seeks contact with the employee and performing other work if the employer so requests.”

IN WHAT OTHER WAYS CAN SHADY EMPLOYERS CHEAT EMPLOYEES?

Shady employers have always had a number of tricks for nipping away at their employees’ rightful wages and overtime pay, but if an employer tries to cheat you in California, consider discussing your rights and legal options with an experienced Fresno employment rights attorney. Whether the concern is a hostile work environment, a wrongful termination, sexual harassment, or an employer’s failure to provide lunch breaks and legal rest periods, all employees in this state have extensive employment rights that are enforceable through the California court system.

A number of state and federal statutes also protect employees in California from wage theft. Wage theft includes minimum-wage violations, unpaid overtime, stolen tips, illegal pay deductions, and other deliberate theft tactics. “Wage theft is not insignificant or uncommon,” according to research published by Temple University’s Sheller Center for Social Justice. “It affects both U.S. citizens and undocumented immigrants. Yet the problem of wage theft is generally hidden or unknown.”

Since January 1, 2017, the minimum wage in California is $10.50 per hour. Although there are some exceptions, almost all employees in this state must be paid the minimum wage as required by state law. Employers who do not pay legal wages face steep fines under both state and federal laws. Workers in this state cannot waive their right to the minimum wage, so even if someone agrees to work for less than the minimum wage, paying someone less than the minimum wage is a violation of the law. Tips may not be counted toward the minimum wage amount, and employers may not take any amount or percentage of the tips that customers give to employees.

HOW DO SHADY EMPLOYERS COMMIT WAGE THEFT?

As victims of wage theft, some California workers are paid less than the state’s minimum wage, or they may have a part of their tips confiscated by employers. Sometimes, workers are not paid the overtime that they’ve earned – a violation that happens frequently, for instance, in the construction field. Some employers make deductions illegally from their employees’ paychecks. And some employers still have a policy like the ABM policy that essentially denied legally-mandated rest periods to employees.

The California Supreme Court did allow one exception for the state’s employers. If a California employer can demonstrate that relieving workers of all duties and responsibilities during rest periods would pose an undue hardship on the employer, that employer can apply for an exemption from the California Division of Labor Standards Enforcement. If granted, an exemption would not be retroactive.

If you believe that an employer is paying you less than the minimum wage or is violating your employment rights in some other way, discuss your concerns with an experienced Fresno employment rights attorney. This state’s courts are actively upholding and protecting the rights of workers across California. There is no reason whatsoever to let an employer take advantage of you.