On December 22, 2016, California Supreme Court in Augustus v. ABM Security Services (Case S224853) has reversed the prior decision made by the appellate court [233 Cal.App.4th 1065 (2014) as modified 1/29/15], and pretty much established new rules applicable to the rest period policies.
A copy of the decision is currently available on the court's website, here and on the Google Scholar, here. Don't wait until an oficial publication comes out, use this time to check your company's policy against the newly announced view on what it takes to provide a real rest break for an employee. No "on call" or "on duty" availability for Order 4-2001* employees: "state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. ... Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees' retention of freedom to use rest periods for their own purposes" (Id.)
And if an employer finds it impractical or burdensome: " Several options nonetheless remain available to employers who find it especially burdensome to relieve their employees of all duties during rest periods — including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7" (Id.)
________________
* The decision makes a distinction with the 5-2001, where under limited circumstances an employee may remain on-call during the rest break.
A copy of the decision is currently available on the court's website, here and on the Google Scholar, here. Don't wait until an oficial publication comes out, use this time to check your company's policy against the newly announced view on what it takes to provide a real rest break for an employee. No "on call" or "on duty" availability for Order 4-2001* employees: "state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. ... Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees' retention of freedom to use rest periods for their own purposes" (Id.)
And if an employer finds it impractical or burdensome: " Several options nonetheless remain available to employers who find it especially burdensome to relieve their employees of all duties during rest periods — including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7" (Id.)
________________
* The decision makes a distinction with the 5-2001, where under limited circumstances an employee may remain on-call during the rest break.
Your options and available strategies will depend on your case's particular facts. If you currently need help with a labor-related legal issue, make your first step toward taking control over the circumstances, and give me a call at (415) 987-7000. I will be glad to guide you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will be glad to share with you the results of my analysis, along with the thoughts on available solutions.
______________________
______________________
No comments:
Post a Comment