Two way radioIn Augustus v. ABM Security Services, Inc., ___ Cal.App.4th ___  (January 29, 2015), the California Court of Appeal (Second Appellate District, Division One) reversed the order of the Los Angeles County Superior Court (Judge Wiley) granting summary judgment on behalf of plaintiffs in a class action for rest break violations.

Plaintiffs were security guards for defendant employer who claimed that they and other security guards were required to remain on call during their rest breaks. Thus, plaintiffs claimed, they were not relieved of all duties during these rest periods and, consequently, not actually provided breaks.  Plaintiff filed a class action on behalf of themselves and all other security guards in California, claiming that defendant failed to comply with the state’s rest period laws.

The trial court certified a class and granted plaintiffs’ motion for summary adjudication on the rest period claim, concluding that defendant had a uniform companywide policy requiring all security guards to remain on duty during their breaks.  Although Plaintiffs offered no evidence indicating anyone’s rest period had ever been interrupted, and defendant offered substantial and uncontroverted evidence that class members regularly took uninterrupted rest breaks during which they performed no work, the trial court concluded that “[w]hat is relevant is whether the employee remains subject to the control of an employer.” “In order to make sense of the statutory scheme,” the court reasoned, “a rest period must not be subject to employer control; otherwise a ‘rest period’ would be part of the work day for which the employer would be required to pay wages in any event.”

Plaintiffs then moved for summary judgment on their damages claim, contending the only remaining task was to apply the court’s earlier finding to undisputed facts. Defendant opposed the motion and moved to decertify the class, arguing again that no evidence had been developed as to who among the class members had been exposed to or followed defendant’s policy requiring security guards to carry radios during rest periods.  Although the trial court acknowledged the evidence that not all security guards were required to carry radios during their breaks, the court ruled that whether a guard actually carried a radio was immaterial, as “[t]here are many alternatives to the radio for hailing a person back to work: cell phone, pager, fetching, hailing and so on.” Summary judgment was granted and judgment entered on behalf of plaintiffs for over $121M, including attorneys’ fees.  Defendant appealed.

The appellate court agreed that class certification was proper but disagreed that summary adjudication of the meal period claim (and subsequent judgment on damages) was warranted. With respect to class certification, the court noted that throughout the certification and summary judgment proceedings, defendant maintained “that the on-call nature of a rest break for a security guard is an industry necessity.” From this concession, however, the trial court could reasonably conclude defendant “possessed a uniform policy of requiring its security guards to remain on call during their rest breaks. Indeed, [defendant] never denied this policy below. Whether such a policy is permissible is an issue ‘eminently suited for class treatment.’”  Although defendant offered substantial evidence indicating the policy was not uniformly applied, “such evidence would go only to the issue of damages [and the] trial court could reasonably conclude the necessity of individual proof of damages would not destroy the community of interest.”

With respect to summary adjudication of plaintiff’s rest period claim, the court was careful to distinguish the law in California between rest periods and meal periods: unlike with meal periods, “the DLSE has never stated specifically whether an on-call rest period is permissible. [Labor Code] Section 226.7 therefore provides our only guidance as to the nature of a rest break, and it says only that an employee cannot be required ‘to work’ during a break.”  Although the court acknowledged that defendant’s security guards were required to remain on call during their rest breaks, it also noted that “they were otherwise permitted to engage and did engage in various non-work activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet. The issue is whether simply being on-call constitutes performing ‘work.’ We conclude it does not.”  In sum, ”Labor Code section 226.7, contrary to the trial court’s ruling, prescribes only that an employee not be required to work on a rest break, not that he or she be relieved of all duties, such as the duty to remain on call. Remaining on call does not itself constitute performing work.”