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Can Employers Require Employees to Remain on Premises?

A reader of this blog recently asked an intriguing question:

“Your boss may require you to remain on work premises during your rest break.: Is this still true after the recent California Supreme Court decision?

I believe the reader was referring to Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257 (2016). That decision said rest breaks in California must be duty-free:

state law prohibits on-duty and on-call rest periods [ . . .] employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

So work must not intrude on a rest break.

What’s interesting is that the court seemed to contradict itself regarding the requirement that employees stay on premises during rest breaks. On the one hand, the court stated:

Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A)), they impose practical limitations on an employee’s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain on site or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control.

Based on that, it seems pretty clear that employers CAN require employees to stay on premises during rest breaks.

On the other hand, the court confusingly went on to mention that requiring employees to remain on call would prevent employees from taking a walk of 5 minutes out and back during their rest breaks, and based in part on that, employees should not be on call during their rest breaks. The court also stated this:

Nonetheless, one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods. [emphasis added].

I’m not sure what to make of the above statements as they seem contradictory.

I think the definitive rule on this issue for now will remain the interpretation set out by the California labor board. That agency is, after all, charged with enforcing rest break laws in the state of California. On their website, the California labor board states:

Q. Can my employer require that I stay on the work premises during my rest period?

A. Yes, your employer can require that you stay on the premises during your rest break. Since you are being compensated for the time during your rest period, your employer can require that you remain on its premises. And under most situations, the employer is required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.

While the supreme court is not bound by the labor board’s interpretations, the court definitely gives them weight. And I don’t see the California labor board altering its policy based upon the above ambiguity in Augustus. So I think the answer for now remains: during rest breaks, employees can be required to remain on premises.

8 Comments

  1. kevin renel on October 12, 2017 at 5:48 pm

    Hi Eugene – what is the legal time period between eight hour shifts in which an employee can punch back in for the next 8 hours under California law? For example If an employee works from 3:30pm until midnight with a 30 minute meal break -what time the next day can the employee punch back in on a flex schedule – is after 8 hours, 10 hours or 12 hours?

    Thank you

    • Eugene Lee on October 12, 2017 at 6:02 pm

      Currently, California law does not mandate a minimum down time between shifts. Of course, there are some industry specific exceptions, such as truck drivers. But in general, back to back to shifts are legal.

      Note, California does have a 1 day of rest in 7 requirement, but the California Supreme Court clarified that the rule resets at the start of each employer-defined workweek. So you could work the last 6 days of a work week, then the first 6 days of the next workweek, resulting in 12 consecutive days worked, yet that would not violate the 1 day in 7 rule because they fall in separate work weeks.

  2. Melissa Mcneill on October 11, 2017 at 8:35 pm

    Can the tell not to smoke before or during so call. Not break

  3. Mel Tuazon on September 22, 2017 at 1:36 pm

    Where i work, employees are asked to work back to back and it is Mandatory. When we mentioned that it’s illegal to do back to back, Manager said…”No it’s not, because we ate in a Retail Store”, my question is, is it true that being an employee at the Retail they can make us work back to back?
    The time is…7:30pm to 11:30pm then, come back in at 7:00am the next day? We were told it is Mandatory so we have to comply.

    Would love to hear for answer pls…we will highly appreciates any answer.
    Sincerely,
    Mel Tuazon

    • Eugene Lee on October 3, 2017 at 7:45 pm

      Unfortunately, the employer has the right to set the work schedule. You are entitled to 1 day of rest in a 7 day work week, however. Also, you must of course be permitted to take your meal breaks and rest breaks.

  4. Ally Soto on September 12, 2017 at 9:22 pm

    Can an employer restrict the use of a mobile device while on my break?

    • Eugene Lee on October 3, 2017 at 8:00 pm

      On a rest break? That’s a good question. I would need more information. On a lunch break? No, if it’s an unpaid lunch break. If it’s unpaid, that means that time is yours to use however you wish.

    • Nolan Bryce on October 4, 2017 at 11:32 am

      If the employer exerts any control over what you do on your rest break, then it is not a rest break. The purpose of a rest break is to “rest” from the work you have been doing so you can come back ten minutes later and be refreshed and ready to continue the day. While the labor board may suggest that you have to stay on premises, you can certainly get up and walk around, go up and down stairwells in a taller building, walk laps around atriums, or around buildings.

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