UPDATES FOR CALIFORNIA EMPLOYERS – FEBRUARY 2015

On-Call During Rest Breaks

In Augustus v. ABM Security Services, Inc., plaintiffs were security guards whose employer provided them with regular rest breaks, but required that the security guards remain on-call during these breaks.  According to the security guards, their employer’s requirement that they remain on-call during rest breaks rendered the rest breaks invalid since the security guards were still under their employer’s control during the breaks.  The trial court agreed with plaintiffs, granted summary judgment in favor of plaintiffs, and entered judgment for plaintiffs and the certified class consisting of 15,000 security guards in the amount of $90 million.  The Court of Appeal reversed the trial court’s judgment.  The Court of Appeal found that California law only requires that employees be relieved of “working” during rest breaks, but does not necessarily require that employees be relieved of all employer control, such as on-call duties.  Therefore, the policy requiring plaintiffs to remain on-call during rest breaks was lawful as long as the security guards were not required to perform actual work during their breaks.

On-Call – On Premises

In Mendiola v. CPS Security, plaintiffs were security guards at construction sites who were required to remain on premises and on-call at times when they were not actively working.  This on-call requirement extended to times when the plaintiffs were sleeping.  At all times when plaintiffs were required to be onsite, they were given the use of onsite trailers.  Plaintiffs were paid for the time in which they actively worked, but were not paid for the on-call time they spent on the premises and in their trailers.  The California Supreme Court affirmed the Court of Appeal’s decision that plaintiffs were entitled to pay for all time in which they both actively worked, and additionally, for the time they remained on the premises and were on-call.  The Supreme Court explained that the level of an employer’s control over its employees is the determinative factor in analyzing whether an employee should be compensated for on-call work.  In plaintiffs’ case, the Supreme Court found that the employer had sufficient control over plaintiffs, and therefore, held that plaintiffs should have been compensated for their on-call duties.

Right to Use Employer Email

Overturning existing precedent, the National Labor Relations Board (“NLRB”) has held that certain employees have a right to use employer email systems for protected communications, unless certain circumstances exist.  In its decision in Purple Communications, Inc. and Communications Workers of America, the NLRB held that workers have a right to use their employer’s email systems for communicating about union organizing and the terms and conditions of their employment.  This decision overruled the NLRB’s 2007 ruling, which held that an employer may prohibit employees from using their email systems for any non-business purpose, including protected communications.  This decision applies only to employees who have already been granted access to their employer’s email system in the course of their work.  The decision does not require employers to extend permission to access email systems to employees who otherwise do not have authorization.  Furthermore, the decision applies only to an employee’s use of email systems for statutorily protected communications during non-working time.  Such statutorily protected communications include communications about the terms and conditions of employment and union organizing.