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Employees Required to Monitor Work Radio and Pager on Break? Employees, Do Not Plan on Being Compensated for This Time

Note, there are two recent cases that deal with similar issues in regard to employees not being entitled to compensation when required to monitor work radios while on break.  As a result, I am posting both of these side by side so readers can follow the two cases more closely.  This is Part 2.


Augustus v. ABM Security Services, Inc. - California Court of Appeal, Second Appellate District, Division One


Facts:  The plaintiffs, former security guards employed by ABM, sued ABM on behalf of themselves and a class of similarly situated individuals on the grounds that ABM failed to provide rest periods as required by law.  Specifically, the plaintiffs claimed that ABM failed to relieve security guards of all duties during rest breaks and instead required its guards to remain on call during breaks. 

After a class was certified, the plaintiffs moved for summary judgment on the grounds that undisputed evidence showed that the guards were required to keep their radios and pagers on during rest breaks, remain vigilant, and respond as needed in emergency situations.  The trial court agreed and granted judgment for plaintiffs for around $90 million.

Holding:  In its unpublished decision, the Court of Appeal reversed and held that under the relevant statute and Wage Order, an employee cannot be required "to work" during a break.  As a result, the Court reasoned that simply being on call does not per se constitute performing "work".  Although the security guards were on call, they were still permitted to engage in various non-work related activities, which they apparently did.  Perhaps one of the more important distinctions the Court made was pointing out that "remaining available to work is not the same as actual working." 

Judgment:  The Court of Appeal reversed the lower court and held that requiring an employee to keep their radios and pagers on during breaks and remain vigilant if needed to respond to an emergency, was not actually compensable time as the employees were not required "to work". 

The Takeaway:  This is another recent case to come along dealing with rest periods and whether this time is compensable.  As with the other case, this Court reached the same conclusion:  simply requiring an employee be available to respond to an emergency by monitoring a work radio and/or pager does not constitute compensable time that the employee should be compensated for.  Employers can breathe a sigh of relief with this one. 

Majority Opinion Judge:  Judge Chaney

Date:  December 31, 2014

Opinion:  http://www.courts.ca.gov/opinions/nonpub/B243788.PDF


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