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The “Opposite of Work”: California Supreme Court Issues On-Call Rest Break Ruling

On December 22, 2016, the Supreme Court of California ruled that California law prohibits on-duty and on-call rest periods. According to the court, “[d]uring required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” Augustus v. ABM Security Services, Inc., No. S224853, Supreme Court of California (December 22, 2016).


ABM Security Services, Inc. employs security guards at residential, retail, office, and industrial sites. The guards’ primary duties were to provide “an immediate and correct response to emergency/life safety situations” and “physical security for the building, its tenants and their employees.” ABM required its security guards to keep their pagers and radio phones on and to respond to calls during their rest periods.

A group of security guards sued alleging that the company violated state law by failing to provide them rest periods. A trial court awarded the security guards $90 million in statutory damages, interest, and penalties. A state appellate court reversed and the state supreme court granted review to consider whether the appellate court was correct under Labor Code section 226.7 and Industrial Welfare Commission wage order No. 4-2001.

The court granted review to address the following two issues:

  1. whether employers must permit their employees to take off-duty rest periods under section 226.7 and Wage Order 4; and
  2. whether employers may require their employees to remain on-call during rest periods.

The Supreme Court’s Holding

Off-Duty Rest Periods

With regard to off-duty rest periods, the court concluded “that the construction of Wage Order 4, subdivision 12(A) that best effectuates the order’s purpose and remains true to its provisions is one that obligates employers to permit––and authorizes employees to take––off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”

On-Call Rest Periods

The court concluded that on-call rest periods are impermissible, reasoning that “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.”


The state supreme court concluded that “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.” “Wage Order 4, subdivision 12(A) and section 226.7,” the court found, “prohibit on-duty rest periods” and instead require employers to “relinquish any control over how employees spend their break time, and relieve their employees of all duties––including the obligation that an employee remain on call.” The court thus reversed the California court of appeals’s judgment.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VI, Number 359

About this Author

Hera S Arsen PhD
Managing Editor of Firm Publications

Hera S. Arsen, J.D., Ph.D., is Managing Editor of the firm's publications, overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera writes blog posts on a variety of legal issues, edits...