Facing two sets of issues unresolved under California law, the Ninth Circuit certified to the California Supreme Court questions involving the application of rest- and meal-period regulations to ambulance attendants working 24-hour shifts. Additionally, the appeals court sought guidance on whether a meal period violation may form the basis for a claim for unpaid wages or improper wage reporting. Finding no controlling state precedent that resolves these issues, the Ninth Circuit asked the California high court to exercise its discretion to accept and decide the certified questions (Stewart v. San Luis Ambulance, Inc., December 29, 2017, per curiam).
Shift agreements. As an emergency medical technician (EMT), an employee had a written 24-hour shift agreement with an ambulance service that required him to “remain on duty, and ready to respond to any emergency calls that came in, throughout all twenty-four hours of his shifts.” The employee was paid for all 24 hours of his shifts—irrespective of whether he was responding to emergencies; engaging in other employment related duties; or eating, sleeping, or enjoying leisure at the ambulance station.
During the course of his employment, he also worked on several shifts of less than 24 hours, which were subject to a separate agreement—the “Day Car Agreement.” Both the shift agreement and the Day Car Agreement had language stating that meal periods would be paid and meals would be taken on-duty. However, the Day Car Agreement had explicit language stating that an employee could revoke the on-duty meal agreement at any time. Employees were authorized to take their meal and rest periods at any time they were not attending an emergency call.
The employee never reported being unable to take a meal or rest period, and his activity logs indicate that every day he had time to take meal and rest periods. However, the employer required him to be available to respond to an emergency call during meal and rest periods.
After the employee ended his employment, he brought this suit alleging violations of federal and state labor law. At issue here are four California state law claims for violation of regulations as to meal and rest periods, among other claims. This appeal followed the district court’s grant to summary judgment in favor of the employer on each of those claims.
Meal and rest period claims. With respect to his meal and rest period claims, the employee seeks a judgment that he is entitled to compensation for an additional two hours of work each day that the worked without proper meal or rest periods. He further claimed that he was entitled to an award of statutory penalties for the employer’s failure to timely pay or accurately reflect these premium wages in his pay statements.
Concluding that resolution of an employee’s claims turned on the proper interpretation of California’s Wage Order 9 in light of tension between Monzon v. Schaefer Ambulance Service, Inc., 273 Cal. Rptr. 615 (1990) and Augustus v. ABM Security Services, Inc., the Ninth Circuit determined that it needed clarification in order to decide this case.
Certified questions. Consequently, the appeals court certified three questions to the California Supreme Court:
|Is an employer of ambulance attendants working 24-hour shifts required to relieve the attendants of all duties during rest breaks, including the duty to be available to respond to an emergency call if one arises during a rest period?|
|May an employer require attendants to be available to respond to emergency calls during their meal periods without a written agreement that contains an on-duty meal revocation clause? If such a clause is required, will a general at-will employment clause satisfy this requirement?|
|Do violations of meal period regulations, which require payment of “premium wage” for each improper meal period, give rise to claims under sections 203 and 226 of the California Labor Code where the employer does not include the premium wage in the employee’s pay or pay statements during the course of the violations?|
No controlling precedent establishes whether ambulance attendants working 24-hour shifts may be required to remain available for emergency calls during rest and meal periods. Wage Order 9 includes express exemptions to certain overtime requirements in the context of ambulance attendants working 24-hour shifts. However, it did not directly address payment for meal or rest periods. The parties’ dispute turns on the open question whether Cal. Code Regs, tit. 8, § 11090, subd. 3(K) and Monzon by implication limit the applicability of the rest-period and meal-period requirements of Wage Order 9 as applied to ambulance attendants working 24-hour shifts.
Rest periods. In Augustus, the California Supreme Court, interpreting Wage Order 4, held that “during rest periods employers must relieve employees of all duties and relinquish control over how employees spent their time.” The state high court further held that on-call rest periods—where an employee remains subject to being called into action at all times during the break—are incompatible with the text of Wage Order 4 and California Labor Code section 226.7. The rest period language of Wage Order 9 is identical to that in Wage Order 4.
Importing this interpretation into Wage Order 9 could create a conflict with section 3(K), which affirmatively contemplates “twenty-four hour shifts of duty” for ambulance attendants. Moreover, for the past 27 years, California courts have permitted employers of ambulance attendants to exclude sleep periods from compensable time without a written agreement, despite the fact that the employer retains control throughout the 24 hours to wake employee from their sleep every time an emergency arises.
Meal periods. Monzon interpreted Wage Order 9 consistent with a federal regulation allowing exclusion of sleep periods and meal periods from compensable time without a written agreement. Nonetheless, it is unclear whether California would extend Monzon to meal periods. Since Monzon, the California high court has made clear that “courts should not incorporate a federal standard concerning what time is compensable ‘absent convincing evidence of the Industrial Welfare Commissions intent.’” Monzon did not identify evidence of the IWC’s intent before looking to federal law. Accordingly, the Ninth Circuit sought clarification of these open questions of California law.
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