A California judge has granted preliminary approval to ABM Security Services’ $110 million settlement to resolve long-pending claims that 15,000 guards were unlawfully required to carry radios and stay “on call” during rest breaks. Los Angeles Superior Court Judge John Shepard Wiley expressed reservations about the amount of attorneys fees requested by class counsel, but preliminarily approved ABM’s agreement to pay $110 million to end the 12-year-long suit alleging its policy requiring the guards to carry radios during breaks violated the state’s Labor Code. The amount of settlement represents the roughly $90 million judgment the class won in 2012, plus interest. Under the settlement, class members will receive an average of $4,700 each.

The single certified class in the matter is defined as all persons employed by ABM in any security guard position from July 12, 2001, to July 1, 2011, who worked a shift exceeding four hours without being allowed to take an uninterrupted rest period. The class of current and former security guards won the nearly $90 million award on summary judgment in July 2012.

ABM appealed, arguing in its brief that the lower court judge’s “unprecedented” ruling “defies law and reason” and would cripple California companies without providing any real benefit to employees. If upheld, ABM argued, the ruling would require companies to force employees to take their rest breaks off their work sites, without their personal cellphones. The appeals court in December 2014 vacated the award, saying that being on call does not constitute performing work in violation of the rest break law. But a majority of the California Supreme Court disagreed, saying in its December decision that the state’s labor code and Wage Order 4 require “employers relinquish any control over how employees spend their break time, and relieve their employees of all duties – including the obligation that an employee remain on call.”

Even though state law and regulations don’t mention on-call time, “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods,” the majority of the court said. After remand, the parties reached the settlement. Judge Wiley in February told them they were “close” to getting it approved, pending several small concerns regarding the proposed class notice and simplifying objection procedures.

The Plaintiffs are represented by Michael Breen Adreani, Drew E. Pomerance and Marina N. Vitek of Roxborough Pomerance Nye & Adreani LLP; Jeffrey Isaac Ehrlich of The Ehrlich Law Firm; Monica Balderrama and G. Arthur Meneses of the Initiative Legal Group LLP; Scott Edward Cole and Matthew R. Bainer of Cole & Associates; and Alvin L. Pittman.

The case is Jennifer Augustus v. American Commercial Security Services et al. (case number BC336416) in the Superior Court of the State of California, County of Los Angeles.

Source: Law360.com



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