Managing Employee use of Mobile Devices
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As employers through California grow and develop more technologically advanced and efficient methods of communications, it has become increasingly convenient to utilize handheld walkie talkies, radios, or cell phones to enable management to keep in touch with key employees (e.g., security guards, supervisors, drivers, etc.). But as highlighted by a recent California Court of Appeal decision, Augustus et. al. v. ABM Security Services, Inc., 233 Cal. App. 4th 1065 (2014), this increased capacity to communicate may come at the risk of greater exposure to liability for employers.
Under California law, employers must afford nonexempt employees "meal breaks" and "rest breaks" during the workday. Generally, an employee who works more than three and one-half hours per day must be permitted to take a paid 10-minute rest period per ever four hours of work. An employee who works at least five hours generally must also be given a 30-minute unpaid "meal break." The California Supreme Court has previously held that, except in very limited situations, employees must be "relieved of all duties" – including the duty of being "on call" – during their meal breaks.
In Augustus, the Court of Appeal reviewed a trial court’s decision that applied a similar rule to employees’ 10-minute rest breaks. The trial court had granted summary judgment in favor of a plaintiff class composed of security guards who argued that they had been deprived of their mandatory 10-minute rest breaks because their employer required that guards keep their walkie-talkies turned on during rest breaks so that they could respond in the event of an emergency. The Court of Appeal disagreed with the trial court and reversed its decision, concluding that, unlike meal breaks, "on call" rest breaks are permissible under California law.
The Augustus court emphasized that, during meal breaks, employers are duty-bound to "relinquish control" over their employees’ activities and afford employees a reasonable opportunity to take an "uninterrupted" 30-minute break. However, a more flexible approach by employers is clearly acceptable when employees are merely taking a 10-minute rest break. Although it would not be a rest break if employees were required to work during it, employers may require that their employees keep walkie talkies (or other communication devices) turned on during rest breaks, respond if the need arises, and then complete their rest break afterwards.
It should be noted that in 2015, the California Supreme Court agreed to review the Court of Appeal’s decision inAugustus, which suggests that the Court has more to say about the extent to which employees are permitted to be "on call" during meal and rest breaks. This remains, therefore, a highly unsettled area of the law. Furthermore, the California Supreme Court’s decision in Augustus could have far reaching effects for employers, as there are obvious analogies between "walkie-talkies" and other means of communication – e.g., cell phones – by which an employee who ought to be on a meal break could instead be deemed "on call."
Because the legal landscape is subject to change and future decisions could have drastic effects on an employer’s liability, it’s critical that employers adopt and enforce best practices. Specifically, employers should train their managers not to contact employees who are taking mandatory meal breaks. To the extent permitted by federal and state safety requirements, employees should be trained to turn off their walkie-talkies while they are taking such breaks. Of equal importance, employers should set up a procedure by which they document that managers and employees are aware of these policies and that they are in regular compliance with them.
For more information on CIOMA’s endorsed program for HR Legal Services, please contact:
Colin P. Calvert
Attorney at Law
ccalvert@laborlawyers.com | O: (949) 798-2160
2050 Main Street | Suite 1000 | Irvine, CA 92614
Christine Baran
Attorney at Law
cbaran@laborlawyers.com | O: (949) 798-2165
2050 Main Street | Suite 1000 | Irvine, CA 92614
