New California Law Requires Emergency Responders to Be on Call During Breaks

 

By Toni Vranjes November 27, 2018
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California voters approved a measure requiring private-sector ambulance workers to be reachable during their work breaks.

The new law is significant for employers in light of the California Supreme Court's 2016 decision in Augustus v. ABM Security Services, which held that on-call breaks are prohibited under state law.

The Augustus case involved an employer that required its security guards to carry radiophones and pagers during rest periods, keep those devices on and respond to calls if necessary.

However, since Californians approved Proposition 11 on Election Day, the Augustus decision won't apply to emergency ambulance workers in the private sector.

"The law is clear that this is carving out an exception to the Augustus ruling for people employed by emergency ambulance providers," said Jeffrey Polsky, a San Francisco attorney at Fox Rothschild.

Break Interruptions

During their meal and rest breaks, emergency medical technicians (EMTs) and paramedics sometimes have to deal with interruptions. These include taking incoming 911 calls and requests to change locations in the field.

Proposition 11 states that these emergency workers must be reachable during their entire work shift—despite the Augustus decision. "In effect, the measure continues the industry practice of requiring EMTs and paramedics to remain on call during breaks," the voter guide states.

Supporters of Proposition 11 contend that the measure is necessary for safety reasons.

"Prop. 11 is needed because a recent California court ruling could stop this longstanding practice and require EMTs and paramedics to be completely unreachable while on break," the supporters stated in the voter guide. "This means if the closest ambulance to your emergency is on break when you call for help, 911 dispatchers would have no way to reach the ambulance crew because all communication devices would be turned off."

Another argument in favor of Proposition 11 states that the measure provides workplace protections for emergency responders. Emergency medical crews will continue receiving an additional hour of pay if they miss a break that cannot be made up during their work shift, supporters added in the voter guide.

There were no arguments against Proposition 11 submitted.

Meanwhile, the ballot measure also called for ambulance companies to provide emergency workers with specialized resources. They must provide annual training on dealing with natural disasters and other emergencies. The companies also must offer mental health education, counseling and services.

It's a common-sense law, said William Sung, an attorney with Lewis Brisbois in Los Angeles. "It strikes the right balance to protect the public safety and employee rights."

On-call work breaks are warranted for certain types of jobs, according to Judith Keyes, an attorney with Davis Wright Tremaine in San Francisco.

"It does make a certain amount of sense in positions of public health and safety to provide for a mechanism where employees can be required during break periods to be on call," Keyes said.

However, Sacramento attorney Jennifer Shaw, founder of Shaw Law Group, raised some concerns about the ballot measure. The Augustus decision held that employees need to take rest breaks as a matter of public safety, she said.

"I think [Proposition 11] is a good idea if you're an ambulance company and a bad idea if you're a worker."

Takeaways for Employers

The Augustus ruling still applies to most California workers even if it doesn't cover private-sector ambulance employees and certain other workers.

"It's one of the most important cases ever to come out of the California Supreme Court," noted Melinda Riechert, an attorney with Morgan Lewis in Palo Alto.

In order to comply with the Augustus decision, covered employers shouldn't require hourly workers to carry employer-provided pagers, radiophones or similar electronic devices during work breaks, Polsky said.

According to Riechert, if the employee carries one of these devices and is required to respond if contacted, then the employee didn't actually get a duty-free break.

Also, to comply with Augustus, employers shouldn't require hourly workers to monitor their own personal phones for work-related messages during their breaks, Polsky added.

"You can't restrict their rest period at all," Shaw noted.

The company would owe the employee one hour of pay at the employee's regular rate of compensation for every workday that the rest break isn't provided. So if the employee's break is interrupted, the employer should either provide that worker with a complete, uninterrupted break or pay the one-hour penalty for noncompliance, Polsky said.

[SHRM members-only HR Q&A: What are the meal and rest break requirements for California employees?]

According to Shaw, employers should pay the premium if a worker doesn't get a complete, uninterrupted rest break—but that might not absolve the company of all liability under the Augustus decision.

Employers should review and revise their policies to make sure there are no restrictions on rest periods, she said. Companies also should train managers and supervisors on the requirements imposed by the Augustus ruling.

"Let's say you're on a 10-minute rest period, and the boss calls and asks you a question," Polsky hypothesized. "What the boss should do is say, 'OK, after you hang up, the 10 minutes starts again.' "

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