Duty-free rest breaks in California: what Augustus v. ABM means for a guard schedule

In December 2016 the California Supreme Court decided Augustus v. ABM Security Services. The facts were ordinary: ABM's guards were told to keep their radios and pagers on during rest breaks and to respond if something came up. No guard in the record was shown to have had a break actually interrupted. The court held that this policy alone violated California law, and reinstated a judgment of roughly $90 million for a class of about 14,000 guards. The case had been running since 2005.

The rule

California's Wage Order 4 requires a paid, ten-minute rest period for every four hours worked or major fraction of it; in practice, one break for shifts of 3.5 to 6 hours, two for 6 to 10 hours, three for 10 to 14. The court's holding in Augustus is that during a rest period the employer must relieve the employee of all duties and give up control over how the employee spends the time. An "on-call" rest break, where the guard must stay ready to respond, is not a rest break. In the court's words, a rest period must be a period of rest.

The consequence for a guard company is that the usual workaround, "take your ten but keep the radio on", is exactly the policy that was found unlawful. A guard on break is not on post, and someone else has to be.

What it means for the schedule

Compliance is a scheduling problem before it is a policy problem. For a single-officer post, a duty-free break means either a relief officer, a supervisor who covers, or a client who has agreed that the post is unstaffed for ten minutes at a known time. For multi-officer sites it means staggering breaks so coverage never drops below the contracted level. Either way the break has to exist in the schedule as a block of time with a cover plan, not as an instruction to "find a moment".

The court did note a narrow path: an employer can seek an exemption from the Division of Labor Standards Enforcement for on-duty rest periods where the nature of the work makes duty-free breaks impossible. That is an application, not a policy a company can adopt on its own.

What it means for the record

When a rest-break claim is made, the question is whether the company can show that breaks were authorised, permitted and duty-free. Three records matter:

1. The schedule, showing break windows and who covered the post.
2. The officer's attestation at the end of the shift that breaks were taken and were duty-free, or a note that one was missed and why. A missed break owes one hour of premium pay under Labor Code 226.7, and a company that pays it when due is in a far better position than one that discovers the pattern in discovery.
3. The activity record. A checkpoint scan, a report filed or a dispatch acknowledged during a logged break is evidence that the break was not duty-free. Seeing those exceptions weekly is how a company fixes a site before it becomes a class.

Checklist

• Write the rest-break policy so it says, plainly, that officers are relieved of all duties and need not carry a radio or phone on break.
• Put breaks in the schedule with a cover plan for every single-officer post.
• Collect a break attestation every shift; pay the premium when a break is missed.
• Review break-time activity exceptions weekly by site.
• Confirm the current rules with employment counsel; wage orders and case law change, and this guide is general information rather than legal advice.

Sources: Augustus v. ABM Security Services, Inc., 2 Cal.5th 257 (2016); analyses by Cooley, Goodwin, Ogletree Deakins, Seyfarth Shaw and Fisher Phillips; California Industrial Welfare Commission Wage Order 4.