AUGUSTUS v. ABM SECURITY SERVICES (To be called and continued to the September 29, 2016, calendar.)Respondents’ Reply Brief on the MeritsCal.October 22, 2015S224853 SUPREME COURT OF CALIFORNIA JENNIFER AUGUSTUSetal., 2d Civil Nos. B243788 & B247392 Plaintiffs and Respondents, (Los Angeles County Super. Ct. Nos. BC336416, BC345918, v. CG5444421) ABM SECURITY SERVICES,INC., Defendant and Appellant. EILED. OCT 22 2015 rrank a. VicGuire Clerk fo Deputy/’ CRC \ 8.25(b)/ ao REPLY BRIEF ON THE MERITS After a Decision by the Court ofAppeal Second Appellate District, Division One Service on Attorney General and District Attorney [Bus. & Prof. Code § 17209; See CRC, Rule 29(b)] Drew E. Pomerance #101239 *Jeffrey I. Ehrlich #117931 *Michael B. Adreani #194991 THE EHRLICH LAW FIRM Marina N. Vitek #183397 16130 Ventura Boulevard, Suite 610 ROXBOROUGH, POMERANCE, Encino, CA 91436 NYE & ADREANI LLP Telephone: (818) 905-3970 5820 Canoga Avenue, Suite 250 Facsimile: (818) 905-3975 Woodland Hills, CA 91367 Telephone: (818) 992-9999 Facsimile: (818) 992-9991 Attorneys for Plaintiff and Respondent Jennifer Augustus, Individually and on Behalf of All Similarly Situated Individuals; and Lead Counselfor the Class (Additional counsellisted on next page) *Monica Balderrama #196424 G. Arthur Meneses #105260 INITIATIVE LEGAL GROUP APC 1801 Century Park East, Suite 2500 Los Angeles, CA 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Carlos Villacres, Plaintiff in Related Case No. BC388380 *Scott Edward Cole #160744 Matthew R.Bainer #220972 SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Suite 950 Oakland, CA 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Attorneys for Emanuel Davis, Plaintiff in Transferred and Coordinated Case No. CGC5444421 (Alameda County Superior Court) *Alvin L. Pittman #127009 LAW OFFICES OF ALVIN L. PITTMAN | 5933 West Century Boulevard, Suite 230 Los Angeles, CA 90045 Telephone: (310) 337-3077 Facsimile: (310) 337-3080 Attorneys for Delores Hall and Carlton Waite, Plaintiffs in Coordinated and Related Case No. BC345918 S224853 SUPREME COURTOFCALIFORNIA JENNIFER AUGUSTUSet al., 2d Civil Nos. B243788 & B247392 Plaintiffs and Respondents, (Los Angeles County Super. Ct. Nos. BC336416, BC345918, v. CG5444421) ABM SECURITY SERVICES,INC., Defendant and Appellant. REPLY BRIEF ON THE MERITS After a Decision by the Court ofAppeal Second Appellate District, Division One Service on Attorney General and District Attorney [Bus. & Prof. Code § 17209; See CRC, Rule 29(b)] Drew E. Pomerance #101239 “Jeffrey I. Ehrlich #117931 *Michael B. Adreani #194991 THE EHRLICH LAW FIRM Marina N.Vitek #183397 16130 Ventura Boulevard, Suite 610 ROXBOROUGH, POMERANCE, Encino, CA 91436 NYE & ADREANI LLP Telephone: (818) 905-3970 5820 Canoga Avenue, Suite 250 Facsimile: (818) 905-3975 Woodland Hills, CA 91367 . Telephone: (818) 992-9999 Facsimile: (818) 992-9991 Attorneys for Plaintiff and RespondentJennifer Augustus, Individually and on Behalf ofAll Similarly Situated Individuals; and Lead Counsel for the Class (Additional counsellisted on next page) *Monica Balderrama #196424 G. Arthur Meneses #105260 INITIATIVE LEGAL GROUP APC 1801 Century Park East, Suite 2500 Los Angeles, CA 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Carlos Villacres, Plaintiff in Related Case No. BC388380 *Scott Edward Cole #160744 Matthew R.Bainer #220972 SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Suite 950 Oakland, CA 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Attorneys for Emanuel Davis, Plaintiff in Transferred and Coordinated Case No. CGC5444421 (Alameda County Superior Court) *Alvin L. Pittman #127009 LAW OFFICESOFALVIN L. PITTMAN 5933 West Century Boulevard, Suite 230 Los Angeles, CA 90045 Telephone: (310) 337-3077 Facsimile: (310) 337-3080 Attorneys for Delores Hall and Carlton Waite, Plaintiffs in Coordinated and Related Case No. BC345918 TABLE OF CONTENTS INTRODUCTION 0...eesesssesseseeceneessenencesesceeesssecsasscesnesaeasseesaseeseeseeseaes 1 ARGUMENT...ecccesessssesessenesescsescecessesescceceseesecscecesesesaceacseecusaeseasaeaseeeasees 6 A. Therelieved-of-all-duty standard applies to rest breaks... 6 1. ABM hasno answerfor how an employer could comply with the no-work mandate in Labor Codesection 226.7 withoutrelieving its employees ofall duty...eeeeeneeeeeeees 6 2. Therelieved-of-all-duty standard, coupled with the exemptionsavailable under the wage order, providesa clear, workable standard for employers and employees; ABM Offers no Viable alternative oo...eeseseseseeseeseeetesetseeteteeseeees 12 B. Since ABM failed to relieve its guardsofall duties on their rest breaks, the summary judgmentagainstit shouldbe affirmed.......... 14 1. Theplaintiffs have consistently maintained,since this case wasfiled in 2005, that ABM improperly requiredits guards to work during their rest breaks 0...eeeeeeseeeseeeeeeseeseceetensens 14 2. ABMis foreclosed from attackingthe facts stated in the Court of Appeal’s opinion because it never challenged the accuracy of the Court’s factual discussion in a rehearing PETITION 0...eeeeeeesceeeeeeeeceseseceesssssesessessssnssesaessasseecsssseseeseaeees 17 3. ABM guardswerenotrelievedofall duty while they were ON Test breaksoeseseeesecssssesesssesseeseseeseessecsesesesesneseserenseesees 19 C. ABM cannotarticulate a justification for allowing employers to require their employees to perform compensable work during TeSt breaks...eeeeeeeeeeeesesseseesesssesssseesessesseesesesasessseeneneesseseeees 21 CONCLUSION o.oo eccecscsessessesenserssscscssnsssssessscsecsessseseasseessssssssnarsseeesees 28 TABLE OF AUTHORITIES Cases Armour & Co. v. Wantock (1944) 323 U.S. 126 ceccecccscsscsescssssescssssessssssssssscssssussssssusesssssssssessssuueecssssees 20 Augustus v. ABM Security Services, Inc. (2014) 182 Cal.Rptr.3d 679 oo... eeeesesccsssescessscscesseeseessassesssenscssaceaeees passim BrinkerRestaurant Corp. v. Supertor Court (2012) 53 Cal.4th 1004.0... eseeeseceseescessetseeeereeseneaseassccesseteteraeeaenes passim Green v. State (2007) 42 Cal.4th 254 eccccccsssssssssssscssssssssssssssssesesssusecessssesessssssuecsessscessessecs 8 Madera Police Officers Assn. v. City ofMadera (1984) 36 Cal.3d 403 vcsssecsscsssssscsssessssssssssssssssssessssssseessssecsesssssseseessseeses 1. 25 Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833.0... ecessssesceseesseceeecessseeseeeeetseeseessceseessesesseeess passim Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 woecsccssssssssssssssessssssessscssssessssseccssnecssssseess 23, 24, 27, 28 Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 v...csssesssssescssssssssssssssssssecessssessssecsssseesesnssseseen 2, 9, 23 People v. Anderson (2010) 50 Cal.4th 19...eeecseesesssenssseeeseeseceseeseeesecesssseacseseseesenssaesees 19 People v. Brown (2015) 61 Cal.4th 968 ...ccssscssscssssessssssssescssssssssssseesesssseesesssssssesseeesssssesetees 19 People v. Correa (2012) 54 Cal.4th 331 ..sscscsssssesssssesssssescsssseesssesseessssseccsssecessseesessssseesssseseen 19 People v. McCullough (2013) 56 Cal.4th 589cecccsscscescscsesssststsesssseseceseesessenessesseessseseesseesees 19 Temple v. Guardsmark (N.D. Cal. 2011, No. C. 09-02124 SI) 2011 WL 723611 0...eeeeeeeee 25 -ii- Statutes California Labor Code § 226.7 .....cicsccscsessssesessssessessesensssssensssenseens passim California Labor Code § 512.0.......:ecessssscsssecseseseeeeeeessesetseesenassssensesseeases 9,10 Rules California Rules of Court, Rule 8.500 ...........ccccsccssscssceseeecseeseceeeseceeeeseseenens 18 - iii - INTRODUCTION ABMaccusestheplaintiffs of spending the bulk of their opening brief addressing a straw man: whether California law permits employers to provide on-duty rest breaks. According to ABM,“this case is not and has never been about whether California law permits on-duty, workingrest breaks; it is about whether on-call rest breaks —i.e., breaks that could potentially be interrupted —are perse invalid under California law.” (ABM ABOM,at16.) Theplaintiffs see it differently. Jennifer Augustus’s original complaint in this action alleged that ABM violated the law by makingits guards work duringtheir rest breaks. The rest-breakclassthat the trial court certified consists of guards who had notbeenrelievedofall duty during their rest breaks. The plaintiffs’ successful summary-adjudication motion on their rest-break claim, as well as their follow-up summary-judgment motion, were grounded on ABM’s admissionthatit failed to relieveits guardsofall duties during rest breaks. Hence, from theplaintiffs’ standpoint, since its inception this case has been aboutthe propriety of on-duty rest breaks. Moresignificantly, when the plaintiffs petitioned this Court for review of the decision below, they sought review on two questions: 1. Doesthe relieved-of-all duty standard adopted in Brinker’ for meal breaks apply to rest breaks, as well? 2. In light of the holding in Mendiola’ that security guards were performing compensable “work” while they were on call, may employers require employees to remain on call during rest breaks? " Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040. ? Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833. This Court granted review without re-phrasing the questionsin a material way.’ Hence,irrespective ofwhat was argued below,at this stage the case would seem to be “about” those two questions. The purported “straw man” that ABM chidestheplaintiffs for addressing in such detail is the first question. It is not surprising that ABM would attemptto re-characterize this case as involving rest breaks that “potentially could have been interrupted” (ABOM,p.1), because that makes it mucheasier for ABM to arguethatall rest breaks inherently contain the potential for interruption in case of emergency. But that has neverbeenthis case. Asthe trial court found, and as the Court of Appeal confirmed, ABM’s guards wereneverrelievedofall duty while on break. These guards, therefore, did not merely face the potential of being “called back” to work. Rather, they never stopped working. ABM’s desire to re-framethe case is also understandable because the text of section 226.7 and this Court’s decisions interpretingit leave ABMwithvery little room to maneuver. ABM acknowledges,as it must, that section 226.7 prohibits employers from making their employees “work” duringrest breaks. In Murphy,* this Court describedrest breaks as a time when employeesare “free from employer control.” And Brinker held * This Courthasslightly rephrased the questions in the case summaryonits website, which frames the issues on which review wasgranted as: (1) Do Labor Code § 226.7, and Industrial Welfare Commission (IWC) wage order No. 4-2001 require that employees berelieved ofall duties duringrest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time underthe analysis ofMendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833? Theplaintiffs have endeavored to answer those two questionsin their briefing in this Court. ‘ Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094,1113. that the prohibition on “work” during meal breaks requires an employerto relieve its employees of their duties during the break. ABM’sresponseis that in 1952, the IWCstated that employees who wereable to rest while performingtheir jobs need notbe relieved ofall duty duringrest breaks. It claims that this “rule” survives the enactment of section 226.7, because the Legislature’s intent in adopting that statute was simply to strengthen enforcementofthe existing regulatory framework. As for Brinker, ABM claimsthatits holding applies only to meal breaks, and should not be extendedto rest breaks becauseofthe “significant differences” between the twotypes of breaks. ABM urges the Court to adopt sometype ofunspecified “flexible” standard about whatis permissible on rest breaks. These arguments cannot withstandscrutiny. The IWC’s 1952 commentappears torefer to the availability of exemptions from the wage order’s rest-break requirements, which already included the exemption processat that time. A similar commentby the IWCin 1976 explained that there was no need to change the wage order’s rest-break requirements for workers who were “almost continually resting” because their employers could invoke the exemption process. The IWC reiterated this point in a 1982 comment. Hence,even if the Legislature’s intent in adopting section 226.7 was simply to strengthen enforcementofthe existing regulatory framework,that frameworkdid not allow employers to require employees to work during rest breaks. The DLSE had concludedlong before section 226.7 was proposedthat rest breaks were supposedto be duty free. More important, ABM’sargumentoverlookstheplain text of the statute, which flatly prohibits employees from being required to work during mealbreaksorrest breaks. ABM makesno attempt to square whatit actually required ofits security guards with the statutory text. In Brinker, this Court concludedthat the rule against making employees work during meal breaks required that they berelievedofall duty. Even if, as ABM contends,there are differences between meal breaks and rest breaks, section 226.7 does nottreat them differently; it applies with equal force to both types of breaks. ABM cannotexplain howactivity that would be prohibited as “work” if performed by employees during meal breaks would ceaseto be “work”ifperformed during rest breaks. The relieved-of-all-duty standard therefore must apply equally to rest breaks and meal breaks. ABM’srequest for a flexible standard for rest breaks cannot be squared with the unqualified commandin section 226.7 that employees shall not be required to work during breaks. Noris there any need for a flexible rule in light of the exemption processin the wage order. ABM’s brief barely acknowledges the existence of exemptions, but their availability allows this Court to construe section 226.7 accordingto its terms. The flexibility that ABM seeks need not be shoehornedinto thelegal standard itself. Instead, employers whoface a true hardship in trying to meet the clear standard can apply to the DLSE andlawfully obtain an exemption from it. This Court’s adoption ofthe relieved-of-all-duty standardfor rest breaks would be dispositive of this case. ABM’s person-most- knowledgeable admitted that ABM doesnotrelieve its guards ofall duties during rest breaks, and boththe trial court and the Court ofAppeal concluded as much. (ABOMat 42.) ABM neversoughtrehearing below,so its argumentthat the Court ofAppeal “misconstrued”this evidence comes toolate. As for the secondissue for review, ABM arguesthatit is not in violation of the law becauseit merely requiresits security guards to remain on-call during their breaks, to be summonedbackto work onlyifrequired. Of course, this argumentis purely hypothetical, since that is not what occurredin this case. ABM did more than require its guards to simply remain on-call during their breaks; it required them to continue working because they were neverrelievedofall of their job duties. Nevertheless, Mendiola teaches that security guards who are simply kept ‘“‘on call” at their employer’s jobsite are, in fact, working for the purposes of compensability. The only way that a rule allowing employees to be similarly kept on call during rest breaks could be consistent with Mendiola would befor this Court to define what constitutes “work” under section 226.7 differently than what constitutes compensable work under the wage order. ABMneveradvancesany reason that wouldjustify this result. Nothingin the text of the statute orits legislative history indicate that when the Legislature referred to “work”in section 226.7, it intended that term to mean something other than “compensable work”as that term is used in the wageorder. Giving the term “work” the same construction in both contexts avoids the peculiar outcome that ABM suggests — which would allow employers to require their employees to engage in compensableactivity during their rest breaks, even though they are forbidden from “working” on thosebreaks.If this causes a particular employera hardship, then the solution, as ABMitselfinvoked for a year, is for that employerto lawfully obtain an exemption from the rest-break requirement from the DLSE. Thereis no needfor this Court to muddle the law by assigning varying meanings to the term “work.” ARGUMENT A. The relieved-of-all-duty standard appliesto rest breaks 1. ABMhasnoanswerfor how an employer could comply with the no-work mandate in Labor Codesection 226.7 withoutrelieving its employeesofall duty The rule that employers mustrelieve their employeesofall duty during rest breaks is supported by multiple sourcesofauthority, as explained at pages 24 to 35 ofthe plaintiffs’ opening brief. These include the essential concept of a “rest break”itself, which connotesa period where an employeeis freed from performing work duties; and the default rule in the wage orderthat both meal breaks and rest breaks must be off duty. ABM had no commentonthese pointsinits brief. Butthe principal justification for the rule that rest breaks must be duty free is the text of section 226.7 itself. As ABM correctly explains, “Labor Code section 226.7 supplies the only express guidancein eitherthe Labor Codeor the wage order regarding the nature of rest breaksthat employers must provide, and it states that ‘an employer shall not require an employee zo work’ during a rest break.” (ABOMat 16, emphasis in original.) ABM concedesthat, “section 226.7 by its terms... prohibits requiring an employee to ‘work’ during a rest or meal break... .” (ABOM at 15.) Yet, ABM asserts that the prohibition in section 226.7 on work during rest breaks “does not requirerelief of ‘all duty’” during rest breaks. (Id. at 25.) This conclusion not only defies commonsense,it also cannot be reconciled with the text of the statute, and ABM makes no attemptto do so. Instead,it tries to minimize the import of whatsection 226.7 actually says by claiming that the Legislature’s purpose in enacting it was simply to strengthen enforcementofexisting labor standards. (ABOM at14.) It argues that when section 226.7 was adopted in 2000that theexisting standard underthe wageorderdid not require that employeesberelieved of all duties during rest breaks. It bases this contention on a single comment madeby the IWCin 1952,not the text of the wage orderitself. The commentitself is somewhat cryptic, in that it says that the IWC “clarified”that it did not intend that employees who had ample timeto rest while at work would haveto be relieved of all duty during rest breaks. (ABOM at 13.) It is not clear what clarification the commentrefers to. But based on similar commentsby the IWCinlateryears, it appears that this is a reference to theavailability of the exemption process, which was included in the Wage Orderin 1952. (See ABM REFJN,Exh.C,para. 26.) Astheplaintiffs explained in their opening brief, in 1976 the IWC published a commentexplaining that the availability of an exemption from the wage order’s rest-break requirements obviated the need to modify the wage order to accommodatesituations where employeeshold jobs where they are “almost continuously resting.” (OBOMat 36.) The IWC made a similar commentin 1982, explaining whyit declined to weaken the “relieved of all duty” requirementfor rest breaks in the wage order. (/d. at 37.) ABM’s contention that the 1952 commentby the IWCestablished that the wage order did not require a duty-free rest periodis belied by the DLSE’slongstanding interpretation of the wage order. The DLSE’s position has been that “rest periods mustbe, as the language implies, duty free.” (DLSE Opinion Letter 2002.02.22); see also DLSE Opinion Letter 1994.09.28,[“‘the employer cannot require that the employee perform duties during the paid rest break”].)° Accordingly, even if the Legislature’s purpose in adopting section 226.7 was simply to enhance the enforcementof existing standards,there is noindication that the Legislature understood that those standards allowed employers to make their employees work during rest breaks. Certainly the text of the statute, which flatly prohibits that employees be made to “work” during meal breaks and rest breaks, undermines ABM’s thesis. “Work”is a synonym for “job” — a paid position of regular employment.° Jobs generally consistofa series of responsibilities or duties that the employer requires the employeeto perform.(See, e.g., Green ». State (2007) 42 Cal.4th 254, 257 [holdingthat disability-discrimination plaintiffs under the FEHA mustprove that they can perform “the essential duties of the job” |.) So when the Legislature prohibited employers from requiring their employees to “work” during rest breaks, it meant that employers could not require employees to continueto perform their jobs during those breaks. This rule can be restated in simpler but equivalent terms: Employees cannot be required to perform their job duties on a rest break. ° ABM alsooffers no responseto the point that in 2001, the IWC modified the rest-break provision in wage order 5, which governsthe public housekeeping industry,to allow a limited exception for off-duty rest breaks for certain workers in 24-hourresidential-carefacilities. The rule the IWC adopted,in effect, is the rule that ABM claimsappliesto all workers under the wage orders’ rest-break provisions. If that were true, then the IWC would not have not neededto carve out an exception to establish the rule in wage order 5. (See OBOMat29.) ° Oxford Pocket Dictionary of CurrentEnglish. This view of the meaningof section 226.7 is consistent with this Court’s observation in Murphy that the Legislature’s purpose in enacting section 226.7 was to address the problem that “employees [were] being forced to work throughtheir meal andrest periods.” (/d., 40 Cal.4th at p. 1106.) This Court observed that both rest periods and meal periods were time when employees were “free from employer control.” (Jd. at p. 1113.) This logic,in turn, formed the basis for this Court’s holding in Brinkerthat, with respect to meal breaks, California law required that employeesbe relievedofall duty and that employersrelinquish control over how the employees spendtheir time during the break. (Brinker, 53 Cal.4th at pp. 1038, 1040-1041.) ABM’sbriefdoesoffer a responseto theplaintiffs’ reliance on Murphy and Brinker. With respect to Murphy, it acknowledges that section 226.7 “prohibits employers from requiring employees to ‘work’ duringrest breaks,”but it claimsthat its position is consistent with Murphy’s view of an employer’s obligation to provide work-free rest breaks. (ABOMat 17.) ABMcontendsthatit does not violate section 226.7 because it merely keeps its guards on call during their rest breaks, and that “without more,”this does not constitute work. In making this argument ABM appears to concede that the relieved-of-all duty standard applies to rest breaks. Its argument thatit has not violated that legal standard presents a different issue, whichis addressed infra at pages 17-21. As for Brinker, ABM asserts that the standard it adopted applies only to meal breaks, for two reasons.First, it claims that the term “relieved ofall duty” is not derived from section 226.7, but from the wage order, whereit applies only to meal breaks. (ABOM at 23.) ABM maintains that Brinker wasonly construing Labor Codesection 512, which deals with meal breaks. ABMthereforeassertsthatthe plaintiffs’ contention that the relieved-of- all-duty standard applies with equalforce to rest breaks “lacks any textual basis in the wage orderor statute, and shouldbe rejected.” (Jd.) Second, ABMarguesthat, evenifthere wasa textual basis to apply the relieved-of- all-duty standardto rest breaks, “doing so would ignore the differences between meal breaks and rest breaks.” (Jd. at 24.) ABM’sfirst argumentfails because section 226.7 did play a key role in this Court’s analysis in Brinker. It had to, since that statute speaks directly to what employers cannot require from employees during meal breaks (andrest breaks). It is true that the term “relieved of all duty” does not appear in section 226.7, which prohibits “work” during rest breaks and meal breaks. But this prohibition necessarily requires that employees be relieved of all duties on breaks, because unless employeesare relieved of their job duties, they are working — which the statute forbids. Accordingly, there is a clear “textual” basis for the relieved-of-all-duty standard, even though the statute expresses that requirementin different language. It is also true that Brinker considered Labor Code section 512. But this does not meanthat the Court did notalso rely on section 226.7. In fact, the Court clearly explained that in addressing the issues presented in Brinker, it was considering both the scope of the duties imposed by the wage order and by “several related statutes,” which it then specified: Labor Code sections 226.7, 512, and 516. (Brinker, 53 Cal.4th at p. 1027.) The Court also explained that if an employerrelieved its employees of all duties and relinquished control over how they spenttheir time on meal breaks, then the employer would notincurliability under the wage orderor section 226.7. (/d., 53 Cal.4th at p. 1041.) ABM therefore has no basis to suggest that 226.7 played norole in the Brinker analysis. -10- ABM’ssecond argumentis that because there are “significant distinctions” between meal breaks and rest breaks, the Court should formulate “a standardthatis tailored specifically to the unique nature of rest breaks.” (ABOM at 24.) Puttingaside thefact that the two distinctions that ABM pointsto are notparticularly significant,’ ABM’s argument misses the point. The Legislature has specifically directed in section 226.7 that employees cannot be required to “work”on either meal breaks orrest breaks.* ABM hasneverexplained why,ifreliefofall duty is what is required to satisfy the statute with respect to mealbreaks, a different (and presumably less stringent) standard should govern whatis acceptable on rest breaks. In their opening brief, the plaintiffs explained that, given the prohibition in section 226.7 on “work”that occurs during either meal breaks or rest breaks, the only way that the standard could bedifferent for the two types ofbreaks would beifthe very concept ofwhat constituted “work” was somehowdifferent for meal breaksthan forrest breaks. (OBOMat 34.) While both ABM and the Court ofAppeal have suggested that the rule adopted in Brinker for meal breaks should not apply to rest breaks, neither has suggested that an employer should be allowed to require employees to perform job-relatedactivities on a rest break that would otherwise be prohibited as “work” ifthey occurred during a meal break. In sum,there is simply no supportin the statute or legislative history for the "The two differencesare the different lengths of the breaks, andthefact that rest breaks count as “hours worked, while off-duty meal breaks do not. (ABOMat 24.) * Workis permissible during mealbreaks, of course, but only when the employee has enteredinto a valid agreement waiving the right to an off-duty mealbreak. -ll- notion that “work” meansdifferent things in the statute, depending on whattypeofbreak is involved. Accordingly, the test for what is required to satisfy the no-work mandatein section 226.7 for meal breaks — whichis the relieved-of-all-duty standardarticulated in Brinker — should apply with equal forceto rest breaks. 2. The relieved-of-all-duty standard, coupled with the exemptions available under the wage order, provides a clear, workable standard for employers and employees; ABMoffers no viable alternative ABMurgesthis Court to adopt whatit calls a “flexible standard” that is “tailored specifically to the unique natureofrest breaks.” (ABOMat 24.) But section 226.7 does notlenditself to a flexible standard. It mandates an unqualified prohibition on “work” during meal breaks andrest breaks. By askingfor a flexible standard, ABMisreally just asking the Court to re- write the statute to allow employers to require their employees to perform some work during rest breaks, which is contrary to what thestatute allows. “An employershall not” cannotlegitimately be read as “some employers may.” Nor should the word “work”be subject to linguistic contortions. There is no need to adopta standard thatis less stringent than what the statutory language mandates asa buffer to prevent the statute from operating too harshly. If enforcement of the no-work mandatein the statute causes a particular employer hardship, then that employer can seek an exemption from the rest-break requirement from the DLSE — just as ABM did forits single-guard sites in 2006.’ ° Thefact that ABM obtained lawful exemption from the rest-break requirementfor one yearplainly suggests that ABM hasatall times understoodthat rest breaks must be duty free. IfABM hadin goodfaith -12- In their opening brief, the plaintiffs explained that the no-work standard not only complies with the Legislature’s mandate,it also provides a clear, easily-administered standard that allows employees to know what their rights are, and employers to know whattheir responsibilities are. ABM respondswith a contrived paradeofhorribles. For example, ABM claimsthatifthe relieved-of-all-duty standard wasapplied to rest breaks, then “a restaurant could not require its cooks to washtheir handsafter using the restroom and before returning from a break. Norcould retail store require a salesperson to maintain a professional appearanceifhe chooses to spendhis break insidethestore.” (ABOMat26.) ABM’s argumentis silly. The relieved-of-all-duty standard already applies to meal breaks under Brinker. Theplaintiffs are unaware of any problemsthat standard has caused with respect to unsanitary cooks or disheveled workers, and ABMhaspointed to none. Applying the same standardto rest breaks therefore seems safe. ABM admitsthatits frightening outcomesare not actually generated bythe relieved-of-all-duty standarditself, but instead from whatit admits is an “extreme interpretation”of that standard, whichit attributes to theplaintiffs. (ABOMat26.) Underthis extreme standard, “any obligation that relates to employmentin any way”constitutes a job duty and therefore cannot be enforced during breaks. (/d.) But ABM confuses workplacerules with job duties. Compliance with workplacerules is not work, and section 226.7 and believed that the law allowed it to require its guards to perform some work while on rest breaks, ABM would not have bothered to seek and obtain an exemption. -13- B A o t h e the wage order only forbid employees from being required to work during breaks; they do not forbid employers from enforcing workplacerules. For example, an employer who forbids employees from sexually harassing customers would not be requiring its employees to work during rest breaks, even though it enforced that rule during breaks. ABMalsoclaimsthat adoption ofthe relieved-of-all-duty standard for rest breaks would also force employers to reduce employee freedom on rest breaks because employers will be forced to adopt “highly restrictive rest break policies.” (ABOMat 36.) Once again, ABM warnsaboutdire consequencesthat would supposedly flow from a legal standard thatis already in force for meal breaks. And onceagain,it cannot point to any proofthatits warning is based on anyreal-world experience with thatlegal standard. In reality, the Legislature has already determinedthatit would be deleterious for employees to be made to work during their rest breaks. That is why it has forbidden the practice in section 226.7. The plaintiffs merely ask the Court to enforce thelaw asit is written. Evenif, as ABM predicts, enforcing that standard might have problematic effects, that is ultimately a problem for the Legislature to address, not a reason to decline to enforce the statute. B. Since ABMfailedto relieve its guardsofall duties on their rest breaks, the summary judgmentagainst it should be affirmed 1. Theplaintiffs have consistently maintained,since this case wasfiled in 2005, that ABM improperly requiredits guards to work duringtheir rest breaks ABM’s contentionthat “this case is not and has never been about whetherCalifornia law permits on-duty, working rest breaks; it is about whetheron-call rest breaks . . . are per se invalid under California law”is not an accuratereflection of the record. As pointed out in theplaintiffs’ -14- discussion of the proceduralhistory ofthis action in their openingbrief, the plaintiffs have consistently argued that ABM failed to comply with California law concerning rest breaks because it required its guardsto perform work during those breaks, and that ABM admitted thatit never relieved its guardsofall duty during their rest breaks. (OBOMat5-10.) Hence, Augustus’s original complaint in 2005 alleged that ABM violated California law because it required its security guards to work during rest periods and that ABM hadnot obtained an exemption from the mandatory rest-period requirement. (1JA 2-3 [paras. 9, 10], 4 [para. 17].) The plaintiffs’ 2008 class-certification motion soughtcertification of a rest-break subclass, predicated on ABM’s admissionthatit did not provide guards with duty-free rest periods. (1JA 111.) Theplaintiffs sought and obtained summary-adjudicationoftheir rest-break claim in July 2010. The principal argument advancedin the motion, whichis reflected in Fact Number1 in their supporting separate statement, was that ““Defendant’s security guard employees are not relievedofall duties at any time.” (10JA 2708.) The evidentiary supportfor this fact came from ABM’s owntestimony, through Setayesh, that it had a company-widepolicy andpractice ofnot relieving its security guardsofall duties during their rest breaks. (10JA 2693.) ABM both opposedthe motion andfiled its own cross-motion, seeking summary judgmentorclass decertification. In defendingthe claims against it concerning meal breaks, ABM arguedthatits meal-break waivers were valid because “the nature of security work prevents guards from being relieved ofall duty.” (7JA 2050.) ABM hasrepeatedly noted thatthis concession was made in the context of defending its use ofmeal-break waivers. This is true, but it does not make the admission anyless relevant -15- with respect to rest breaks. ABM’s concession reveals whyit did notrelieve its guardsofall duties during any of their breaks. ABM did nottreat meal breaks any differently thanit did rest breaks. Its security guards were on dutyall the time becauseit claimed its business demandedit. (SeeO0RBOM at 8-10.) When ABM opposedtheplaintiffs’ summary-adjudication motion,it did ot argue that there was triable issue of fact about whetherornotit relievedits guardsofall duties on rest breaks. In fact, while ABM supported its opposition with declarations from two dozen guards(declarations that ABM’s counsel drafted), not one of those declarations stated that the guard hadbeenrelieved ofall duty duringrest breaks.’° Rather, ABM argued thatits policy of allowing the guards to engage in some “leisure activities” while on rest breaks waslegally sufficient to comply with its rest-break obligations. (See OBOM at10, 11.) It also argued that Setayesh’s testimony should be understood to mean that ABM requiredits guardsto keeptheir radios or pagers on in case guards were neededto respond to an emergencyorother business demands. (See OBOMat11,12.) This is exactly whatJudge Kuhl understood ABM’s position to be whenshegrantedtheplaintiffs’ motion,finding that the law required ABM to relieve its guardsofall duties during rest breaks, and that ABM failed to do this. (See OBOMat14, quotingJudge Kuhl’s order.) Accordingly,this case has never been about whether employees can be called back from their breaks in the event of an emergency.Interrupting a "© See, 10JA 2925, 2926 [identifying opposition declarations]; see, e.g., 11JA 2995, 3000, 3006, 3046, 3147, 3143 [a sample ofsix of the largely- identical opposition declarations]. -16- lawfuloff-duty rest break because of an emergency does not meanthat the rest break policy wasillegal. Here, of course, ABM’s security guards did not merely face the prospectofbeing called back from lawful rest breaks. They were performing someoftheir job duties the whole time, and thus were nevergiven a lawfulrest break to begin with. ABM’s attemptto recast this case as anything other than thatis belied by the record, as explained below. 2. ABMis foreclosed from attacking the facts stated in the Court ofAppeal’s opinion because it never challenged the accuracy ofthe Court’s factual discussion in a rehearing petition As ABM acknowledges, the Court ofAppeal credited Setayesh’s testimonyin its opinion, concluding that ABM “admitted [that] ABM guardsare notrelievedofall duties during rest breaks.” (ABOMat 42, citing Augustus v. ABM Security Services, Inc. (2014) 182 Cal.Rptr.3d 679, 681.) As noted bytheplaintiffs in their opening brief, the Court ofAppeal also specifically detailed the principal duties that ABM requiredits guards to perform while they were on duty, and the principal duties that ABM required the guards to perform during rest breaks. The plaintiffs placed that discussion into a chart on page 3 of their opening brief. Becausethat chartis relevantto the parties’ arguments here,theplaintiffs will again set forth the chart below, for the Court’s convenience: -17- Principal job duties ofABM security guard while on duty ABMguardresponsibilities during rest breaks “The primary responsibility of Security at a guardedfacility is to provide an immediate and correct response to emergency/life safety situations (i.e. fire, medical emergency, bombthreat, elevator entrapments, earthquakes,etc.) In addition, the Security officers must provide physical security for the building, its tenants and their employees. The security officer can accomplish this task by observing andreportingall unusual activities. In essence, the officer is the eyes and ears of the Building Management.” (Augustus, 182 Cal.Rptr.3d at pp- 679-680.) “ABM admittedit requiresits security guards to keep their radios and pagers on duringrest breaks, to remain vigilant, and to respond whenneedsarise, such as when a tenantwishes to be escorted to the parkinglot, a building manager must be notified of a mechanical problem, or an emergency situation occurs.” (Augustus, 182 Cal.Rptr.3d at p. 680.) ABMhasnotsuggested in its answering brief that the chart somehow misquotes the Court of Appeal’s opinion. In fact, ABM never referred to the chart. Nor did ABM contendin the Court ofAppeal that any aspect of the court’s opinion wasfactually inaccurate. ABM didnotfile a rehearing petition seeking the correction of any portion of the opinion below. To the contrary, ABM filed a request asking the Courtto publish its opinion without asking for any changes in the opinion. Rule of Court 8.500(c) makes clear that this Court will generally -18- accept the statementofthe facts and issues contained in a Courtof Appeal’s opinion, “‘unless the party has called the Court of Appeal’s attention to any alleged omission or misstatementofan issueorfact in a petition for rehearing.” This Court has consistently enforcedthis rule. (See, €.., People v. Brown (2015) 61 Cal.4th 968, 978-979; People v. McCullough (2013) 56 Cal.4th 589, 591; People v. Correa (2012) 54 Cal.4th 331, 334, fn. 3; People v. Anderson (2010) 50 Cal.4th 19, 23, fn. 3.) The Court has also noted that refusing to allow a party to attack the Court of Appeal’s factual discussionis particularly appropriate, where, as here, the party making the attack not only failed to seek rehearing,butfiled a publication request. (People v. Brown, 61 Cal.4th at p. 979.) ABMshould therefore be foreclosed from attempting to re-argue the facts in this Court. (See, e.g, ABOM at 42-43 [arguing that the Court of Appeal’s reliance on Setayesh’s admission was misplaced becauseit “‘misconstrues Setayesh’s testimony in three critical ways”; Jd. at 44 [arguing that ABM’s admission in its summary judgment opposition that “suards simply must keep their radios or pagers on” should be construed to meanthat “‘some guards, at some sites, at some times, were required to be on call during rest breaks.” (emphasis in text)].) 3. ABM guards werenotrelievedofall duty while they were on rest breaks As Judge Kuhl found when she granted summary adjudication, and as the Court of Appeal’s opinion makes clear, when ABM guards were on duty, their “principal responsibility” was to remain alert to situations that required some type of response, and then to provide the appropriate response,suchas calling the police, calling for an ambulance,notifying building managementofa problem,or simply providing assistance such as escorting a tenantto her car. (Augustus, 182 Cal.Rptr.3d at pp. 679-680; 13JA 3757-3758.) This was what the guards werepaid to do,and thisis the service that ABM sells its customers, who hire it to provide security for theirfacilities. -19 - Theopinion below also explains that when guards were on break, ABMstill expected them to “remain vigilant” and to respond when needs arise, “such as when tenant wishesto be escorted to the parking lot, a building manager must benotified of a mechanical problem,or an emergencysituation occurs.” (Augustus, 182 Cal.Rptr.3d at p. 680.) In other words,as the chart clearly shows, ABM did notrelieveits guardsofall duties during their rest breaks; rather, it required the guards to continue to perform someoftheir principal job duties. ABM’s responseis to suggest that the Court of Appeal’s description of what ABM required from its guards during rest breaks merely described “the type of work a guard might perform ¢fshe were called back to duty.” (ABOM at 22, emphasisin original.) That is an imaginative spin, butit suggests that security guards —orpolice orfirefighters —are not actually working until a situation occurs that requires a response from them. In making this argument, ABMis taking thelosing side in an argumentthat wassettled long ago. Asthe plaintiffs pointed out on page 44 of their openingbrief, both this Court and the U.S. Supreme Court have held that “readiness to serve may behired, quite as muchasserviceitself.” (Mendiola, 60 Cal.4th at p. 840, citing Armour & Co. v. Wantock (1944) 323 U.S. 126, 133.) Hence, “‘an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.”(/d.) ABMexpectsits guardsto be ready,alert andvigilant, and then if something does happen,to deal with it. That is the essenceoftheir job and it is their principal job duty. The record plainly shows that ABM requiresits guards to perform this function both while they are on duty, and while they are on their rest breaks. This is why, when both Judge Kuhl and Judge Wiley applied the relieved-of-all-duty standard to ABM’spractice -20- concerning rest breaks, they correctly concluded that ABM did not comply with California law. C. ABM cannotarticulate a justification for allowing employers to require their employees to perform compensable work during rest breaks In Mendiola, this Court held that, “under the California wage order covering security guards, theseplaintiffs are entitled to compensation forall on-call hours spentat their assigned worksites under their employers’ control.” (/d., 60 Cal.4th at p. 836.) The guards in Mendiola were required to be at their employer’s jobsite, in trailers, where they could read, watch television, use the internet, or even sleep. But because they had to respond to calls or to any suspiciousactivity that they became awareof, they were under their employer’s control, and therefore entitled to compensation for the entire time they were “on call.” (/d., 60 Cal.4th at p. 842.) While ABM’s guards wereonrest breaks, they too were expected to respondto any situation that developedat the work site."’ Hence, under Mendiola, ABM guards were engaged in compensable work under the wage order while they were on rest breaks. ABM doesnot suggest otherwise. Of course, since the wage order specifies that time spent onrest breaksis counted as “hours worked,” there is no compensability issue presented here. ” ABMarguesin its brief that there is nothing in the recordto allow the Court to conclude that an “immediate” response wasrequired from its guards while they were on rest break. (ABOM at 22.) But the chart on page 18, above, refutes ABM’s point. While on duty, ABM guards were expressly required to provide an “immediate” responseto any situation while on duty. The guards’ duties while on rest breaks mirroredthis requirement, since guards were required to remain vigilant and to respond “‘when needsarise.” Nothing suggests that guards coulddefertheir response until their rest breaks were over and they were back on duty. -21- Rather, the issue is whether what constitutes “work”as that term is used in section 226.7 is the same as whatqualifies as “hours worked”under the wage order. Stated differently, the inquiry here is whetherthe test for “work” undersection 226.7 is, or should be, different than the test for “hours worked” under the wage order.In their openingbrief, the plaintiffs explained that there was neither a textual nor a policy justification for construing “work” in section 226.7 more narrowly than “hours worked”in the wage order. (OBOMat 42-46.) As result, the holding in Mendiola, that guards were working while on call at the jobsite, dictates that ABM’srest breaks are notvalid. Specifically, wage order 4 requires employers to pay their employees for all “hours worked.” (Mendiola, 60 Cal.4th at p. 839.) The wage order defines “hours worked”as, “the time during which an employeeis subject to the control of an employer, and includesall the time the employeeis suffered or permitted to work, whether or not required to do so.” (/d.) Astheplaintiffs pointed out in their openingbrief, the test for compensability under the wage order (employer control) parallels the Brinkertest for an off-duty meal period that complies with section 226.7 (relief of all duty and relinquishment of employercontrol). This makes sense. When employees engage in compensable work, they should be paid for it. And given section 226.7, employers may not require their employees to engage in compensable work duringrest periods, which are supposed to be dutyfree. ABMarguesthat there is a distinction between what constitutes “hours worked” in the compensable-time context and prohibited “work” undersection 226.7, becausethe test for “hours worked”in the wage order has two components — time when the employeeis under the employer’s -22- control, or, time when the employeeis suffered or permitted to work. (ABOM at 28.) ABM’sobservationis correct, but it is not clear how this helps ABM’s position. Whenan employeeis “suffered or permitted” to work,it means that the employeeis working, but not at the employer’s request. (Morillion v. RoyalPacking Co. (2000) 22 Cal.4th 575, 585.) An example would be unauthorized overtime, which the employer has not requested or required. (Id.) Section 226.7 does not prohibit “work” during rest breaks; it prohibits employers from requiring their employees to work. By definition, employees whoare suffered or permitted to work are not being required to do so. The conclusion that employees cannot be madeto perform compensable work during rest breaks is buttressed by Murphy, which held that the compensation that section 226.7 makesavailable to employees who have been required to work during breaksis properly treated as a wage, not a penalty. (Murphy, 40 Cal.4th at p. 1114.) In reasoningto that conclusion, the Court explained that if employers were allowed to require their employees to work during rest breaks, employees would essentially perform 20 minutesof “free” labor per 8-hourshift. (/d., 40 Cal.4th at p. 1104.) This is because “the employee receives the same amount of compensation for working throughthe rest periods that the employee would have received had he or she been permitted to take therest periods.” (/d.) Murphy therefore clearly connects the prohibition on work contained in section 226.7 with the concept of compensable work under the wage order, and therefore forbids the outcome that ABM arguesfor here —a construction of section 226.7 that allows employeesto be required to perform compensable work duringrest breaks. -23- ABM’sresponseon this issue, as with its analysis of the relieved-of- all-duty standard,is oblique. Its answeringbrief containsthreedistinct arguments: e That the compensable-time cases do not address an employer’s obligations to provide rest breaks (ABOM at28); e That Mendiola and the other compensable-time cases show that on-call rest breaks cannotbe per se invalid (ABOMat 29- 34); and e Thatthe plaintiffs’ reliance on Mendiola and Morillion is misplaced, because those casesare factually distinguishable (ABOMat 34-36). Although ABM’s observation that the compensable-time cases do not address an employer’s obligations concerning rest breaksis accurate,it misses the point. Mendiola, for example,is relevant here for two reasons.It demonstrates that, even though ABM allowedits guards to browse the internet or make phonecalls during their rest breaks, this did not mean that they were not working. Andit showsthat the guards who wereoncall at their employer’s work site were under their employer’s control and providing a serviceto their employer, and weretherefore entitled to compensation forthe on-call time. Mendiola accordingly demonstrates that ABM’s guards, whowerelikewise providing services to their employer duringtheir rest breaks, were therefore working, and notreceiving off-duty rest breaks. ABMdevotessubstantial spaceto its second argument, which seeks to establish that “simply being on-call does not constitute performinply g P g -24- work.” (ABOMat 29.)’? Dependingontheparticularsituation, that could be true. Without knowing the exact arrangement,it would bedifficult to craft any absolute rules regarding which “on-call” relationships constitute work and which donot.Asplaintiffs noted in their openingbrief, “[The term ‘on call’] encompassesa disparate variety of arrangements between employer and employee. Someofthese on-call arrangementsqualify as work, while others do not.” (ABOM at 39.) Plaintiffs cited Madera Police Officers Assn. v. City ofMadera (1984) 36 Cal.3d 403, 408,as an example. That case detailed two different types of on-call arrangementsby the police officers, one that constituted “working”and onethatdid not. (/d.) Therefore,it is not surprising that an “on-call” physician whois out for dinner with her spouse is probably not working, while a security guard who remains ‘“‘on-call” during a rest break, taken in the middle of hershift,is surely working. Since there are manydifferent kinds of on-call arrangements, the Courts have formulated a multi-factor test to sort out which arrangements qualify as compensable work. (Mendzola, 60 Cal.4th at p. 840.) The purpose of the test is to determine which arrangements involve sufficient degree of employer control over the employeeas to qualify as compensable “hours worked” under the wage order. (See, e.g., Mendiola, 60 Cal.4th at p. 840 ” As it did below, ABM cites the unpublished, pre-Brinker federaltrial court decision in Temple ». Guardsmark (N.D. Cal. 2011, No. C. 09-02124 SI) 2011 WL 723611,for the proposition that on-call rest breaks are acceptable under California law. It even attaches a copy of Temple to its brief. In thetrial court, Judge Wiley criticized ABM forciting Temple becauseit lacks any legal analysis justifying on-call breaks. Rather, and as Judge Wiley pointed out to ABM,theopinion clearly states that the parties simply stipulated that on call breaks were acceptable. (3RT 6324:22- 6325:15.) -25- [ “California courts considering whetheron-call time constitutes hours worked have primarily focused on the extent of the employer’s control.” ].) In addition to the multi-factor test, “Courts have also taken into account whetherthe ‘on-call waiting time is spent primarily for the benefit of the employer andits business.” (/d., internal brackets andellipses omitted.) ABM,atpage31 ofits brief, chides the plaintiffs for not “grappling” with the multi-factor test. But at page 33, it acknowledges that many ofthe factors in the test “are clearly irrelevant to rest breaks,” and explainsthat, “to the extent a multifactor analysis is even appropriate here, only three Mendiola factors could even be potentially relevant . . .” (d.) ABM therefore does not seem convinced that the multi-factor test even applies”. Regardless,no weighingoffactors is necessary here, because Mendiola holds that security guards whoare kepton call at their employer’s jobsite, and who,despite being allowed to engage in certain leisure activities, are nevertheless expected to respondto security-related calls, are working and henceentitled to compensation. Even withoutrelying on Mendiola, the same conclusion would follow from the responsibilities that ABM required ofits guards while they were on rest breaks. By requiring its guards to (a) remain in some kind of communication contact with a pageror radio, (b) to remain “vigilant” during the breaks, and to (c) respond when needsarise, whether the needis a legitimate emergency or something moreroutine such asa client request * This is likely because the cases that apply this test have discussed on-call arrangementsthattake place outside an employee’s normalshift and away from the actual work premises. This multi-factor test was not formulated to analyze whetheran “on-call” ten minute rest break that takes place typically in the middle of the employee’s shift constitutes work. This is likely why ABM acknowledgesthatthistestis ill-suited to the rest break situation. -26- for an escortto the parking lot (Augustus, 182 Cal.Rptr.3d at p. 680), ABM requires its guards to work during their rest breaks. No multi-factortestis neededto establish thisreality. ABM’sthird argument, focusing on whatit perceivesas factual dissimilarities between this case and Mendiola and Morillion,alsofails to provide any reason whythis Court should hold that employees can be allowed to perform compensable work during their rest breaks. ABM argues that the employersin thosecases placed “stringent additional restrictions on their employees’ ability to engage in non-workactivities.” (ABOM at 34.) ABM’sefforts to distinguish these cases are unavailing. For example, ABM observesthat in Mendiola, the guards were requiredto reside in trailers at the work site; restrictions were placed on visitors, pets, and alcohol use; and guards couldnoteasily trade on-call responsibilities. But the very nature of a rest break, whichis a 10 minute respite during the guard’s normalshift, necessarily means that ABM guards likewise cannot havevisitorsor pets, or use alcohol. ABM certainly does not suggest otherwise. Sotherestrictions in Mendiola that ABM points to would also seem to apply to ABM’sguards,given the natureofrest breaks. As for Morillion, ABM notesthat the Court focused on the practical consequencesofthe employer’s requirementthat its employees assemble at designatedlocations to be transportedto the jobsite in buses supplied by the employer. The Court noted that since employees could not use their own cars to get to and from thefields where they worked, they could not drop off their children at school or stop for breakfast before work, or run other errands that required the use of a car. ABM notes that there was nofinding by the trial court that ABM placed similarrestrictions on its guards during rest breaks. -27- But ABM is merely comparingdifferent kinds ofrestrictions, while missing the larger point. ABM concedesthatit did notrelieve its guards of all duties during their rest breaks, and the record clearly showsthat the guards remained underits control during those breaks. The fact that ABM’s guardscould drive to work butthe field workers in Morillion could not simply showsthat the manner in which ABM exercised control was different than the way that the employerexercised control in Morillion. This difference does not negate the existence of ABM’scontrol. CONCLUSION Section 226.7 applies with equal force to meal breaks andrest breaks. Accordingly, the considerationsthat led this Court in Brinker to adopt the relieved-of-all-duty standard for meal breaks dictate that the same standard should apply to rest breaks. ABM fails to articulate any viable reason why what constitutes “work”ifperformed during a meal break would notalso constitute “work”ifdone duringa rest break. The application of the relieved-of-all duty test is dispositive here, becausetherecordplainly established that ABM didnotrelieve its guards of all duties during rest breaks. Contrary to ABM’sprotests, the plaintiffs do not seek to hold ABMliable because its guards were merely subject to the “potential” for interruption during their rest breaks; ABM isliable because it required its employees to work during their breaks. Nor does ABMoffer any reason whythis Court should find that the term “work”in section 226.7 should be construed more narrowly than the conceptof “hours worked”in the wage order — time when the employeeis under the employer’s control. This result is consistent with Brinker, and avoids the oddresult that, despite the prohibition in section 226.7 on employees being required to work on their breaks, employers couldstill - 28 - require their employees to perform compensable work underthe wage order during those breaks. The summary judgmentin favorofthe plaintiffs should be affirmed. Dated: October 21, 2015. Respectfully submitted, ROXBOROUGH, POMERANCE, NYE & ADREANI, LLP THE EHRLICH LAW FIRM By (dh TY Jeffrey I. Fhrlich torneysfor Plaintiffs/Respondents - 29 - Certificate ofWord Count (Cal. Rules ofCourt, Rule 8.520(c)(1)) Thetext of this reply brief consists of 8,399 words, accordingto the word count generated by the Microsoft Word word-processing program used to preparethebrief. Dated: October 21, 2015. (ek T Y= Jeffrey I. Ehrlich Lead Case: Augustus, et al. v. ABM Security Services, Inc., etc. Supreme Court No. $224853 Court ofAppeal No. B243788 (consolidated No. B247392) Superior Court Case Nos.: Lead Case No. BC336416 [consolidated Case Nos. BC345918 and CGC5444421] PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELESI am employedin the County ofLos Angeles, State of California. I am over the age of 18 and nota party to the within action; my business address is: 237 West Fourth Street, Second Floor, Claremont, California 91711. On October 21, 2015, I served the foregoing documents described as REPLY BRIEF ON THE MERITSontheinterested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressedas follows: PLEASE SEE ATTACHED SERVICE LIST [XX] BY MAIL Iam "readily familiar" with the firm's practice of collection and processing correspondencefor mailing. Underthat practice it would be deposited with U.S.postal service on that same day with postage thereonfully prepaid at Claremont, California, in the ordinary course ofbusiness. I am aware that on motion of party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one(1) day after date of deposit for mailingin affidavit. [XX] ELECTRONIC Pursuant to CRC Rule 8.212(c)(2) and/or the Court’s Local Rules, a copy was submitted electronically via the Court’s website as indicated on the service list. Service copy waselectronically submitted to the Attorney General via the Office of the Attorney General website. [] BY FACSIMILE("FAX")In addition to the mannerofservice indicated above, a copy was sent by FAXto the parties indicated on the service List. [|] BY OVERNIGHT MAIL/COURIERTo expedite service, copies were sent via FEDERAL EXPRESS. [XX] (State) I declare under penalty of perjury underthe lawsofthe State of California that the aboveis true and correct. Executed on October 21, 2015, at Claremont, California. Isabel Cisneros-Drake, Paralegal Lead Case: Augustus, et al. v. ABM Security Services, Inc., etc. Supreme Court No. S224853 Court ofAppeal No. B243788 (consolidated No. B247392) Superior Court Case Nos.: Lead Case No. BC336416 [consolidated case Nos. BC345918 and CGC5444421] SERVICE LIST Counsel for Defendant and Appellant ABM Security Services,Inc. Theodore J. Boutrous,Jr., Esq. Keith A. Jacoby, Esq. TheaneEvangelis, Esq. Dominic J. Messiha, Esq. Andrew G.Pappas, Esq. LITTLER MENDELSON,P.C. Bradley J. Hamburger, Esq. 2049 Century Park East, 5" Floor GIBSON, DUNN & CRUTCHER LLP _Los Angeles, CA 90067 333 South Grand Avenue Telephone: (310) 553-0308 Los Angeles, CA 90071 Facsimile: (310) 553-5583 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 Counselfor Plaintiffand RespondentJennifer Augustus and Lead Counselfor Class in consolidated actions Drew E. Pomerance,Esq. Michael B. Adreani, Esq. Marina N.Vitek, Esq. ROXBOROUGH, POMERANCE, NYE & ADREANI LLP 5820 Canoga Avenue, Suite 250 Woodland Hills, CA 91367 Telephone: (818) 992-9999 Facsimile: (818) 992-9991 Additional Counsel for Class Representatives and Class Members André E.Jardini, Esq. Michael S. Duberchin, Esq. KNAPP, PETERSEN & CLARKE LAW OFFICES OF MICHAELS. 550 North Brand Boulevard, Suite 1500 DUBERCHIN Glendale, CA 91203-1922 Post Office Box 8806 Telephone: (818) 547-5000 Calabasas, CA 91372 Facsimile: (818) 547-5329 Telephone: (818) 222-8487 Facsimile: (818) 222-8487 Joshua M. Merliss, Esq. GORDON, EDELSTEIN, KREPACK GRANT, FELTON & GOLDSTEIN, LLP 3580 Wilshire Boulevard, Suite 1800 Los Angeles, CA 90010 Telephone: (213) 739-7000 Facsimile: (213) 386-1671 Monica Balderrama, Esq. G. Arthur Meneses, Esq. INITIATIVE LEGAL GROUP APC 1801 Century Park East, Suite 2500 Los Angeles, CA 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Scott Edward Cole, Esq. Matthew R.Bainer, Esq. SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Suite 950 Oakland, CA 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Alvin L. Pittman, Esq. LAW OFFICES OF ALVIN L. PITTMAN Suite 230 5933 West Century Boulevard Los Angeles, CA 90045 Telephone: (310) 337-3077 Facsimile: (310) 337-3080 Counsel for Amici Curiae for Appellant Paul Grossman,Esq. PAUL HASTINGSJANOFSKY & WALKER 515 South FlowerStreet, 25" Floor Los Angeles, CA 90071 Counsel for California Employment Law Counsel and Employers Group Robert H. Wright, Esq. HORVITZ & LEVY 15760 Ventura Boulevard, 18" Floor Encino, CA 91436 Counsel for Chamber ofCommerce of the United States of America; National Association of Security Companies; California Association of Licensed Security Agencies D. Gregory Valenza, Esq. SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, CA 94104 Counsel for California Chamberof Commerce David Raymond Ongaro,Esq. THOMPSON & KNIGHT LLP 50 California Street, Suite 3325 San Francisco, CA 94111 Counsel for TrueBlue, Inc. Counsel for Amici Curiae for Respondents David Thomas Mara, Esq. THE TURLEY LAW FIRM 625 Broadway, Suite 635 San Diego, CA 92101 Counsel for ConsumerAttorneys of California Louis Max Benowitz, Esq. THE LAW OFFICE OF LOUIS M. BENOWITZ Penthouse Floor 9454 Wilshire Boulevard Beverly Hills, CA 90212 Counsel for California Employment Lawyers Association Service required pursuant to Bus. & Prof. Code § 17209 Office of the Attorney General Appellate Coordinator ConsumerLaw Section 300 South Spring Street Los Angeles, CA 90013-1230 Via electronic link at http://oag.ca.gov/services-info Office of the District Attorney Hall ofJustice Writs & Appeals 850 Bryant Street, Room 322 San Francisco, CA 94103 Courts Clerk of the Superior Court Los Angeles Superior Court Central Civil West Hon. John Shepard Wiley,Jr. 600 South Commonwealth Avenue Los Angeles, CA 90005 Clerk of the Court ofAppeal Second Appellate District, Div. 1 North Tower, Floor 2 300 South Spring Street Los Angeles, CA 90013-1213 Office of the District Attorney Appellate Division 320 West Temple Street, Suite 540 Los Angeles, CA 90012 Electronic Submission Clerk of the Supreme Court Filed Via Overnight Delivery California Supreme Court Original and 8 copies / plus 350 McAllister Street electronic copy submission San Francisco, CA 94102
