“Hours Worked” May Include Sleep Time for On-Call Employees

By Sutton Hague Law Corporation on January 30, 2015 in Legal Update
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The Supreme Court of California recently held that “sleep time” during a 24-hour shift is compensable to the extent the employee is under the employer’s control. In Mendiola v. CPS Security Solutions, security guards covered by Industrial Welfare Commission (“IWC”) Wage Order No. 4 claimed they were entitled to compensation for all on-call hours spent at their assigned worksites, including sleep time and other non-work time. The Court agreed.

CPS Security Solutions (“CPS”) employed on-call guards to provide security at construction worksites. While on-call, guards received no compensation unless (1) an alarm or other circumstances required them to conduct an investigation or (2) they waited for, or had been denied, a reliever. Guards were required to spend on-call hours in trailers provided by CPS. Guards were obligated to respond – immediately and in uniform – if contacted by a dispatcher or if they became aware of suspicious activity. Guards could not easily trade on-call responsibilities. They could request relief from dispatchers, but if there was no relief available, guards could not leave the worksite. If relieved, guards had to be accessible by pager or radio phone and were required to stay close enough to the worksite to return within 30 minutes. Guards also had to report where they were going and for how long. Adult visitors were permitted in the trailers with the approval of CPS. However, children, pets, and alcohol were not allowed.

According to the Court, it is well established that an employee’s on-call or standby time may require compensation. California courts have focused on the extent of the employer’s control in considering whether on-call time constitutes hours worked.  When an employer prevents an employee from using time effectively for his or her own purposes by directing, commanding or restraining an employee from leaving the work place, the employee remains subject to the control of the employer and must be paid for that time.

The Court considered the following factors in determining whether the employer controlled the employees’ time: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movement; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; (7) whether the employee had actually engaged in personal activities during on-call time; and (8) whether the on-call time is spent primarily for the benefit of the employer and its business. In applying these factors, the Mendiola Court found that the on-call time was subject to CPS’s control and was therefore compensable.

The Court rejected the employer’s argument that the applicable IWC Wage Order incorporated a federal regulation permitting the exclusion of eight (8) hours of sleep time from an employee’s 24-hour shift. The Court concluded that Wage Order No. 4 does not permit the exclusion of sleep time from compensable hours worked in 24-hour shifts. CPS was required to compensate the security guards for all hours spent on-call and under CPS’s control.

The Decision’s Effect on California Employers

California employers with on-call employees should carefully review their policy for determining compensable time. Employers should ensure that employees are properly compensated for all on-call hours spent under the employer’s control. Even time spent sleeping may be compensable to the extent that the employer exercises control over the employee.

You can read the decision here: Mendiola v. CPS Security Solutions (S.C. S212704 En Banc 1/8/15)