Safety First: California Legislation Provides Collective Bargaining Agreement Carve Out for Petroleum Facility Workers in Safety-Sensitive Positions for Rest Periods

With the passage of AB 2605 earlier this year, employees covered by specific Collective Bargaining Agreements (“CBAs”) who hold a “safety-sensitive” position at a petroleum facility are now exempt from certain California rest and recovery period requirements. This bill is a legislative response to the highly criticized Augustus v. ABM Security Services, Inc. 2 Cal.5th 257 (December 22, 2016) decision. In Augustus, ABM Security required its security guards to keep their radios on during their rest and recovery periods in case of an emergency. The plaintiffs argued that this “on-call policy” required them to not be relieved of all duty, and therefore unlawfully denied their right to a rest period. The California Supreme Court agreed, holding that being “on call” requires employees to remain “at the ready” and therefore unable to fully engage in personal activities.

AB 2605 adds Section 226.75 to the California Labor Code, limiting the scope of Augustus as it relates to petroleum facility workers in safety-sensitive positions who are covered by a valid collective bargaining agreement (“CBA”) and who are subject to the Industrial Welfare Commission Wage Order No. 1. For a CBA to be deemed valid, it must expressly provide for employee wages, hours of work, working conditions, and rest periods. In addition, the CBA must expressly provide for final and binding arbitration of disputes concerning application of its rest period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.

AB 2605 provides: “the requirements that employees must be relieved of all duties during rest periods shall not apply with respect to an employee holding a safety sensitive position at a petroleum facility.” AB 2605 defines a “safety sensitive position” as “a job in which the employee’s job duties reasonably include responding to emergencies at a petroleum facility” and defines a “petroleum facility” as “petroleum refineries, marine and onshore terminals handling crude oil and petroleum products, bulk marketing terminals, asphalt plants, gas plants, catalyst plants, carbon plants, and any other facility involved in the processing, refining, transport, or storage of crude oil or petroleum products.”

The legislature cited public and employee safety and facility security as the public policy behind the legislation. The rest period exemption will apply to the extent that an employee is required by their employer to carry a communication device, such as a radio, during their rest period and respond to emergencies as the need arises. If an interruption of an employee’s rest period takes place due to an emergency, another rest period must be permitted by the employer “reasonably promptly” after the circumstances that led to the interruption have passed. Further, only when the circumstances do not allow for the employee to take a rest period during a workday, must the employer pay the employee the penalty for rest period violations—one hour of additional regular-rate pay.

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