While the 2012 California Supreme Court decision in Brinker clarified some of the landscape for meal and rest period litigation, break requirements continue to give rise to more than their share of class action claims.

In Augustus v. ABM, security guards filed suit in Los Angeles in 2005 arguing that they did not receive adequate rest breaks because they were required to carry radios and be available, if necessary. In 2012, the plaintiff’s moved for summary judgment arguing that the evidence was undisputed that ABM violated the law and that they were entitled to damages, interest, and penalties totaling $103.8 million. Despite the absence of any evidence that anyone’s rest period had actually been interrupted, the superior court granted the motion and awarded plaintiffs $89.7 million.

ABM appealed and the appellate court, in an unpublished opinion, reversed. The appellate court explained that Labor Code § 226.7 said that “[a]n employer shall not require an employee to work during a meal or rest or recovery period.” (The statute has since been amended to include recovery periods to prevent heat illness.) But requiring someone to work is different than requiring them to be available. In addition, while the wage orders clearly state that employees must be relieved of all duties during meal periods, they contain no such requirement for rest periods. So according to the appellate court, employees need not be relieved of all duties during rest periods.

Because the decision is unpublished and can still be taken up for review, this may not be the final word on the topic. [On January 29, 2015, the case was ordered to be published.] Still, it’s nice for our first post of 2015 to be good news for employers.