As any employer knows, State and Federal Law require that employees be paid for all hours worked. In California, Wage Order No. 4, written by the Industrial Welfare Commission (“IWC”), defines hours worked as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Wage Order 4, subd. 2(K).) Though this seems pretty straightforward, this wage order, and what are compensable hours, has been the subject of much litigation. The results are decisions that determine compensable hours include but are not limited to the following: “waiting time”, time spent attending mandatory lectures and training programs, “off-the-clock” time, and work travel time. Now, a new category must be added to the list, “sleep time.”
In a recent decision, the California Supreme Court held that on-call hours which included sleep time, are compensable hours. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal. 4th 833). Although the employer made creative arguments to limit their obligation to pay compensation for this time, including arguing the employees are not subject to their control during their on-call shifts, have the ability to perform personal activities, or that federal regulations should be adopted and/or incorporated, the Supreme Court decided none of them were sufficient. In Mendiola a class of security guards filed suit claiming that their employer, CPS Security Inc.’s on call policy violated Wage Order No. 4. The security guards were required to “reside” in their trailers and spend their on-call hours in the trailer or on the work site. (Id. at 837). They had to respond immediately and in uniform, they couldn’t trade their on-call assignments easily, and in the event they did, the guards had to state where they were going and, while gone, they were subject to recall within a 30 minute period. (Id.) In making its decision the court looked to the text of the statutes and a previous holding stating that Wage Order No. 4’s two phrases, “time during which an employee is subject to the control of an employer” and “time the employee is suffered or permitted to work, whether or not required to do so” may be seen as “independent factors, each of which defines whether certain time spent is compensable as ‘hours worked.’” (Id. at 839). In breaking the language of this Wage Order down, the court looked at the amount of control CPS exerted over their on-call security guards. Though CPS argued the fact that the guards were able to perform personal activities including sleeping, showering, eating, reading, watching TV etc., demonstrated they were not subject to control sufficient to trigger an obligation to pay them; the court did not agree. (Id. at 842). Relying on its analysis in, an earlier case, Morillon, the court stated that although guards were able to perform such personal activities, this did not remove the control that CPS exerted over them. (Id.)
The Court in Mendiola further held that sleep-hours could not be excluded from compensable hours and that industry specific wage orders do not incorporate federal regulation that permits the exclusion of eight hours sleep time from employees’ 24-hour shifts. (Id. at 844). The IWC’s Wage and Order laws are to be construed strictly. California has the right to offer greater protection to workers than the Federal Laws and to adopt a federal regulation without IWC consent would restrict the protections afforded employees, thus the Court declined to import the federal standards. (Id. at 843).
So when do you have to pay for Sleep Time? The answer is when an employee is on-call and subject to your control, or when there is a 24-hour shift worked. When analyzing the duties of on-call employees, remember the following 7 factors that will determine if the hours worked are compensable: 1) whether there was an on-site living requirement, 2) whether there were excessive geographical restrictions on the employee’s movements, 3) whether the frequency of calls was unduly restrictive, 4) whether a fixed time limit for a response was unduly restrictive, 5) whether the on-call employee could easily trade on-call responsibilities, 6) whether the use of a pager could ease restrictions, 7) whether the employee had actually engaged in personal activities during call-in time.(8 CCR § 11090; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 523-524).
The information presented in this article is intended for general educational purposes. It is not intended to be legal advice. Every company or person’s situation is different and requires individual analysis by competent counsel before legal advice can be rendered. If you are confronted by a legal issue retain competent legal counsel to advise you immediately. This article is not a substitute for legal advice from an attorney licensed to practice in your jurisdiction.