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California Employers May Now Be Required to Allow Employees to Leave Premises During Rest Breaks

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Until recently, the California Labor Commissioner’s Office took the position that employers could require employees to stay on the work premises during ten-minute rest breaks, but they were required to let employees leave the premises during 30-minute meal periods. This position changed recently after the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. In Augustus, the California Supreme Court held that an employer could not require its security guards to remain “on-duty” or “on call” during their rest breaks. The Court found that the employer’s restraint on the security guards’ activities—making them carry a radio and pager and respond to calls—was inconsistent with the employer’s obligation to relinquish control over its employees during rest breaks. The Court did not, however, directly address whether employers can require employees to remain on the premises during rest breaks. In fact, the Court’s opinion actually contains dicta indicating that employers can require employees to remain on the premises during rest breaks. Specifically, the Court states that due to the short length of rest breaks, “one would expect that employees will ordinarily have to remain on site or nearby,” and “this constraint, which is of course common to all rest periods, is not sufficient to establish employer control.”

Nevertheless, after this decision, the Labor Commissioner’s Office revised its Frequently Asked Questions regarding Rest Breaks such that in response to the question, “Can my employer require that I stay on the work premises during my rest period?”, the Labor Commissioner now states:

No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services, Inc., (2016) 5 Cal.5th 257, 269, the California Supreme Court held that the rest period requirement “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.”

(citation omitted). As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.  Until a California court rules otherwise, employers may want to consider allowing employees to leave the premises during both meal periods and rest breaks.