Recent Employment Law Decisions

California Supreme Court

Employers Must Provide Employees with Break Time Free from Duties or Employer Control

AUGUSTUS v. ABM SECURITY SERVICES, INC.

“We granted review to address two related issues: whether employers are required to permit their employees to take off-duty rest periods under Labor Code section 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040 (Wage Order 4)), and whether employers may require their employees to remain “on call” during rest periods. What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1038-1039 (Brinker).)

Plaintiffs worked as security guards for defendant ABM Security Services, Inc. (ABM). A requirement of employment at ABM was for guards to keep their pagers and radio phones on—even during rest periods—and to remain vigilant and responsive to calls when needs arose. ABM’s understanding about the scope of such needs, meanwhile, encompassed a variety of circumstances, including situations where a building tenant wished to be escorted to the parking lot, a building manager had to be notified of a mechanical problem, or the occurrence of some kind of “emergency situation.” Plaintiffs sued ABM, alleging the company failed to provide the rest periods that state law entitles employees to receive. The trial court granted summary judgment for plaintiffs, finding ABM liable and awarding approximately $90 million—but the Court of Appeal reversed. Because state law requires employers to provide their employees with rest periods that are free from duties or employer control, we reverse the Court of Appeal.”

Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Theane Evangelis, Andrew G. Pappas, Bradley J. Hamburger, Los Angeles; Littler Mendelson, Keith A. Jacoby and Dominic J. Messiha, Los Angeles, for Defendant and Appellant.
Roxborough, Pomerance, Nye & Adreani, Drew E. Pomerance, Michael B Adreani, Marina N. Vitek, Woodland Hills; The Ehrlich Law Firm, Jeffrey Isaac Ehrlich; Initiative Legal Group, Monica Balderrama, Los Angeles, G. Arthur Meneses; Scott Cole & Associates, Scott Edward Cole, Matthew R. Bainer, Oakland; Law Offices of Alvin L. Pittman and Alvin L. Pittman for Plaintiffs and Respondents.
Cal. 12/22/16 decision by Cuéllar; Cantil-Sakauye, Werdegar, Chin, Chin concurring; Kruger opinion concurring and dissenting, joined by Corrigan; ___ P.3d ___, 2016 WL 7407328.

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Message from the Chair
By Jean K. Hyams

Jean K. Hyams

Be the Change You Seek

By the time this message reaches you, we will have passed through the longest night and the Earth will have completed her annual circuit of our star. We will have crossed the threshold into a new year, albeit one that brings uncertainty and trepidation. In the midst of such troubled times, CELA has also crossed a threshold, but one that brings hope. For the first time CELA’s membership includes more than 1300 talented attorneys dedicated to protecting and advancing the rights of California workers. As we move forward into 2017, now is the time to turn to our community for strength.

To echo words woven into the poetry of June Jordan, writings of Alice Walker, oratory of President Obama, and lyrics of Sweet Honey in the Rock — We are the ones we have been waiting for.

Together, we have much work to do. In the wake of the election of a new President who has promised to target the communities and rights that we, as employment civil rights attorneys, have dedicated our lives to protect, the mission of CELA and organizations like ours has become even more vital. Within CELA, we are committed to stepping up the fight to safeguard the rights of workers, communities of color, immigrants, individuals with disabilities, women, LGBTQ people, and others under attack.

Soon after the election, the CELA Board announced our organization’s resolve to organize and resist attacks on the advances that civil rights movements have fought so hard to attain and protect. CELA members, individually and collectively, have begun the work in earnest to stand up for workers and communities under attack.

As a concrete step of solidarity with workers and their advocates around the country, many CELA members have already answered the call to become new members of our national affiliate, the National Employment Lawyers Association. CELA will match every new membership with a $100 donation to NELA to lend further support to those who will be fighting for workers on the frontlines at the federal level.

On January 6th, CELA joins with many non-profits, bar associations and other legal organizations for “How to Be a Good Ally,” a cutting-edge conference addressing urgent matters of importance, including many that will directly affect our clients. The conference will address threats posed by rising hate crimes and anti-Semitism; the targeting of transgender people and religious exemptions to LGBT civil rights protections; criminalization of communities of color; undermining economic

justice and workers’ rights; and challenges to civil liberties and the civil justice system. Registration is available through the Bar Association of San Francisco’s website —  www.sfbar.org/calendar.

One of the characteristics that makes CELA a strong and vibrant organization is our commitment to diversity and equal opportunity. CELA lives this commitment through initiatives like our annual Diversity Leadership Summits and Employee Justice Summer Clerkship Program, and through our partnership with our sister non-profit, FAIR. These activities, along with our Diversity Policy, have helped CELA to grow in inclusiveness over many years. That work must continue and we encourage every CELA member to donate to FAIR to ensure there is a next generation of talented civil rights and employment attorneys that reflects California. Visit www.fair-foundation.org to learn more.

In Sacramento, CELA remains committed to ensuring that our law stands as a bulwark for all California workers and a beacon of hope for workers around the nation. We embrace the message of the “Joint Statement from California Legislative Leaders on Result of Presidential Election” from Senate President pro Tempore Kevin de León (D-Los Angeles) and Assembly Speaker Anthony Rendon:

California is – and must always be – a refuge of justice and opportunity for people of all walks, talks, ages and aspirations – regardless of how you look, where you live, what language you speak, or who you love.

In the coming year, CELA will continue our commitment to build the strongest possible coalitions with other civil rights organizations to ensure that our state serves as a beacon of hope and a model of the strength that comes when diversity is recognized and valued. We are now a proud member of three compelling coalitions centered on making positive change for California workers and working families. Mariko Yoshihara represents CELA on the steering committee for the Stronger California Advocates Network, a historic coalition of organizations focused on securing economic opportunity for all women in California. As part of the Work & Family Coalition, we are also working on a grassroots campaign to pass parental leave, expand caregiver leave, and limit call-in scheduling. Finally, CELA recently joined the Building the California Dream Alliance, whose ambitious agenda aims to uplift families and expand economic opportunities for Californians from birth to retirement.

On December 9th, CELA Policy Director Mariko Yoshihara convened the CELA Legislative Charrette, our annual legislative brainstorming session. This year’s Charrette focused largely on legislative strategies to head off or counter threats that may come from the federal level. We have convened two working groups to focus on legislative action our state can take to shore up workers’ rights laws in the event the new administration succeeds in eroding federal protections.

The Charrette also witnessed the creation of another working group dedicated to mobilizing support for the critical fights that will come at the federal level. We have no intention of sitting on the sidelines as forces move to dismantle hard-fought worker protections at the federal level.

The election discourse has unleashed vocal, virulent and violent white supremacy, xenophobia, anti-Muslim and anti-Semitic bigotry, and more. To be part of countering this evil, the CELA Board has issued a call to our members to expose bigotry when it manifests in California workplaces. CELA members who represent a worker targeted by hate are asked to contact Mariko Yoshihara or any member of the CELA Board. Tracking reports of these types of incidents will help us better advocate for strong employment protections and will inform our coalition work with other civil rights organizations.

Each member of CELA is on the frontlines of making our democracy live up to its promise of equal opportunity and due process. Every day, we ensure that constitutional protections and worker’s rights are enforced and are not lofty goals that solely exist in writing. We breathe life into the constitution every time we speak up on behalf of workers, take a case before a jury or demand that law-breaking employers follow the law. Workers need us to champion their rights now more than ever.

CELA is committed to holding the line here in California. We will not retreat. We will only move forward. We will be calling on all our members to join us for further specific action as national events unfold. We thank each CELA member for your commitment to workers and commitment to CELA. The Board has no monopoly on good ideas for treading the treacherous waters ahead. We greatly value the wisdom of our extraordinary members, and ask you to contribute ideas on how CELA and our members can best engage during this critical time for our State and the nation. Please share your ideas directly with CELA Chair Jean Hyams or any other member of the CELA Board, or by emailing info@cela.org.

CELA’s working Board serves as a steward for CELA’s mission. In view of the amount of work our organization undertakes, serving on the board is both an honor and a challenge. This year, two board members – past Chairs Toni Jaramilla and Phil Horowitz — will end many years of service on the Board and I ask that you join me in thanking them. There is no question that Phil and Toni will devote themselves to CELA. Indeed, I am happy to report that Toni was elected by the Board to serve as corporate Treasurer. Toni and Phil have always recognized and cultivated the leadership qualities of many CELA members, so I know both are optimistic that their stepping off the Board will offer an opportunity for new leaders to step forward.

Thanks to significant work of CELA’s 2016 Nominating Committee, the Board has selected two new, highly qualified board members – Craig Byrnes and Vincent Tong — from among an excellent pool of candidates. Please read the profiles of our newest board members in this edition of the bulletin! With so much important work to do, we are very much looking forward to having Craig and Vincent join us.

On behalf of the CELA Board, I wish everyone in our community a healthy and happy New Year. May we stay focused and strong to accomplish all that we can in the year ahead!

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