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One to Keep An Eye On: Augustus v. ABM Security Services, Inc., California Supreme Court


As with many labor and employment law cases around the country, there are always a few that stand out.  This is one to keep an eye on.


Facts:  Several former security guards brought a class action and alleged they were entitled to additional compensation as a result of having to monitor work radios and pagers while on unpaid breaks and respond if an emergency arose.  The guards claimed that because they were not relieved of all duties while on an unpaid break, there were entitled to compensation for this time spent monitoring work radios and being available to respond if needed.  The trial court agreed and awarded the plaintiffs a judgment of nearly $90 million.

Looking Back:  Earlier this year, the California Court of Appeal, Second Appellate District, Division One, reversed an award of nearly $90 million dollars from the lower court and held that an employee who is on call during a break is not actually working and therefore is not entitled to be compensated for this time spent on call.  (Augustus v. ABM Security Services, Inc. - Court of Appeal Ruling).  The Court of Appeal held that even though the employees were required to monitor work radios and pagers while on break and remain in the area, this on call time did not constitute work and therefore was not compensable. 

The Main Issue:  Is an employee who is required to monitor radios and pagers and remain on call, even though on an unpaid break, entitled to be compensated for this unpaid time spent on call?

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

Current Status:  On April 29, the California Supreme Court granted the employee's petition for review of the Court of Appeal's decision.  This one is still in the early stages while the Court accepts briefs and then sets the matter for argument. 

Looking Ahead:  It is hard to say whether the California Supreme Court will disturb the Court of Appeal's decision, but if I had to decide where I think this case will go, I would have to say that I think the Court of Appeal's decision will stand.  As the lower court held, simply having an employee remain vigilant and be able to respond to an emergency call if needed while on break does not necessarily mean the employee is "working".

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