By Veenita Raj and Anthony Zaller
It is a common argument by plaintiff’s counsel in wage and hour class actions: The employer’s policy that requires the employee to remain on the company premises during 10-minute rest breaks facially violates California law. Therefore, because the employer has a facially invalid rest break policy, it is a company wide policy that is uniform, and should easily be certified as a class action.
However, there are many cases that support the position that on the premises rest break policy is not facially invalid, and that an on-premises rest break policy, alone, is not sufficient to establish that the employer did not relinquish control as to how the employees spent their rest breaks. The key factor is whether the employer controlled how the employee spent their rest break time, in addition to requiring the employee to remain on premises, such as limiting the employees to stay close to their work area for example.
Augustus v. ABM Security Services Recognized There Exist Practical Limitations Where an Employee Can Go During a 10-minute Rest Break.
In Augustus v. ABM Security Services (2016) 2 Cal. 5th 257, the California Supreme Court held that by requiring employees to remain on call by monitoring a pager during a 10-minute rest break violated California law. Our prior analysis on Augustus can be read here. However, the Supreme Court was clear that because the 10-minute rest breaks are only 10-minutes, there are “practical limitations on an employee’s movement.” The Court continued, “Thus, one would expect that employee will ordinarily have to remain on site or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control.” It was the additional requirement in the Augustus case were the employees had to carry a pager and respond to the employer’s calls during the break that provide the facts for the Supreme Court to hold that the employer violated the 10-minute rest break obligations.
Many Courts have acknowledged the California’s Supreme Court’s holding in Augustus regarding on premises rest breaks:
Hubbs v. Big Lots Stores 2018 U.S. Dist. LEXIS 226096 (C.D. Cal., July 11, 2018): A United States District Court for the Central District of California rejected the argument that a policy requiring employees to remain on the premises during the 10-minute rest break reflects the exercise of employer control that qualifies the time as on-duty work. The Court noted that an employer may not require employees to remain “on call” during a ten-minute rest period, Augustus nevertheless recognized that an employer may require an employee to remain “on premises” during such rest periods. The Court stated that Augustus acknowledged that “employers must . . . relinquish any control over how employees spend their break time” and that “compelling employees to remain at the ready, tethered by time and policy to particular locations or communication devices” imposes job-related duties and constitutes employer control because employees are not “free to use rest periods for their own purposes.” That requiring employees to remain “on site or nearby” during a ten-minute break was “not sufficient to establish employer control.” The Court stated that Augustus concluded that these were short breaks, and this restriction was a “practical limitation on an employee’s movement” permitted under California law.
Schmidtberger v. W. Ref. Retail 2021 U.S. Dist. LEXIS 201935 (C.D. Cal., Sep. 28, 2021): In Schmidtberger the court rejected Plaintiff’s contention that a policy of requiring employees stay on the premises during rest breaks is invalid facially. The Court stated that in Augustus, the California Supreme Court explained that “[b]ecause rest periods are 10 minutes in length . . . one would expect employees will ordinarily have to remain on site or nearby.” This restriction “which is common to all rest periods, is not sufficient to establish employer control.” The Court also noted that multiple federal court have implemented a straightforward interpretation of California law established in Augustus, and have dismissed arguments predicating liability on an employer’s policy of prohibiting off-premises rest breaks.”
Ritenour v. Carrington Mortg. Servs. 2018 U.S. Dist. LEXIS 226668 (C.D. Cal., Sept. 12, 2018): Plaintiffs alleged that the rest break policy was “facially unlawful” under Augustus v. ABM Security Services, Inc., and guidance from the California Division of Labor Standards Enforcement (“DLSE”). After Augustus, the DLSE’s website page of Frequently Asked Questions directly addressed the issue of whether an employer can require an employee to stay on the worksite during a rest period. Citing to Augustus, the DLSE stated, “No, your employer cannot impose any restraints not inherent in the rest period requirement itself.” (See DLSE FAQ #5 here).
The Court held that Plaintiffs failed to show that Defendant’s rest period policy requiring employees to remain on site is facially invalid. The Court held that the policy did not conflict with Augustus and that the California Supreme Court never stated that an employer cannot require an employee to remain on the premises during a rest period. Moreover, the court held that the DLSE’s expansive interpretation of Augustus in a Frequently Asked Questions page is neither binding on nor persuasive to the court. Indeed, the DLSE’s FAQ even notes that “[a]s a practical matter,” when an employee receives a 10-minute rest period, “the employee can only travel five minutes from a work post before heading back to return in time.”
Rodriguez v. Wal-Mart Assocs. 2020 U.S. Dist. LEXIS 247004 (C.D.Cal., Oct. 8, 2020): The Court held that Plaintiffs failed to demonstrate that Defendant had a policy or practice that controlled how or where employees spent their rest breaks or that Defendant failed to relieve Plaintiffs of all work-related duties. At best, Plaintiffs have alleged that Defendant suggested or encouraged ways by which Plaintiffs could take their provided rest breaks. As such, Plaintiffs have failed to plausibly allege a rest break violation.
Videau v. Caritas Mgmt. Corp., 2021 Cal. App. LEXIS 122: Unlike the employees in Augustus, the employee in this case was not on call during his rest periods: he did not carry a pager, walkie-talkie, or radio, nor was he required “‘to remain vigilant, and to respond when needs arise[.]'” Moreover, if the employee’s resting period was interrupted for any reason, “he was authorized and permitted to take his full rest break after the interruption.” “Employers may . . . provide employees with another rest period to replace one that was interrupted[.]”
Bowen v. Target Corp. 2020 U.S. Dost. LEXIS 118914 (C.D. Cal., Mar. 27, 2020): The Court assessed whether Plaintiffs could state a viable claim based on an “on-premises rest period theory” — the theory that employers who force their employees to remain on-premises for the duration of a rest period effectively fail to provide a rest period at all. In concluding that Plaintiffs had failed to state a claim, the Court observed that a “rest period” was defined in the Wage Order as “time during which an employee is relieved from all work-related duties and free from employer control.” After the Court defined rest periods, it turned to the California Supreme Court’s opinion in Augustus v. ABM Sec. Servs. to determine whether an on-premises rest period policy constituted sufficient “employer control” to deprive employees of a rest period. Focusing on language in Augustus that practical and temporal constraints common to all rest periods meant that “employees will ordinarily have to remain on site or nearby” and that “this constraint… is not sufficient to establish employer control,” the Court held that Target’s alleged on-premises rest period policy did not constitute sufficient “employer control” to deprive employees of a rest period. As a result, the Court dismissed Plaintiffs’ claims to the extent they relied on an on-premises rest period theory.
While there is case law supporting on-premises rest breaks, this type of policy is routinely challenged by plaintiffs in California, and employers need to review these types of policies with employment counsel before implementing. This issue is a good example on how a simple sentence in an employee handbook could potentially create huge amounts of liability for the employer. While there is support from these cases for on premises rest breaks, employers need to review their policies with counsel to ensure compliance with California law.