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Sleep Time Pay vs On Call Pay

By on September 23, 2015

Question

Under California or Federal law, are employees entitled to compensation for “sleep time,” although they worked 24 hour shifts, are on­ call, and are still under the employer’s control?

Brief Answer

Probably yes. California and federal laws state that employees should be compensated for all hours worked with no exclusions. If a shift includes 24 hours, but this does not include “on call hours,” but instead is a required amount of time worked. During this period, the employee likely could not leave their work place and was not allowed to partake in personal activities such as engaging with family. Therefore, due to the extensive oversight of the employer and the lengthy shifts, it is likely that a court will see that the employer sufficiently controlled the employee and thus should pay them for hours worked.

Rule

Wage Hour 4 entitles (1) employees to be compensated for all “on-­call” hours worked at assigned workplaces (2) under the employer’s control and (3) does not entitle the exclusion of “sleep hours.” Industrial Welfare Commission Wage Order No. 4­2001, Cal. Code Regs., tit. 8, § 11040, defines hours worked as all “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 Courts have identified various factors bearing on an employer’s control during on­call time: “ ‘(1) whether there was an on ­premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (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; and (7) whether the employee had actually engaged in personal activities during call-­in time.’ Owens v. Local No. 169 (9th Cir. 1992) 971 F.2d 347,351. Considering the above rule, the term “sleep hours” are defined as hours set aside for sleep, which the employer claims no responsibility to pay.

Discussion

Wage Hour 4 entitles (1) employees to be compensated for all “on­call” hours worked at assigned workplaces (2) under the employer’s control and (3) does not entitle the exclusion of “sleep hours.” Hours should be compensated so long as the employer has control of the employee. In Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4Th 833, 835 (2015), security guards were on patrol for eight hours, on call for eight hoaurs, and off duty for eight hours. On weekends, each guard was on patrol for 16 hours and on call for eight hours. Their employer claims they should not get compensation for the eight on call hours. Id. The theory relied on by the employers was that “sleep time” is considered uncompensated during a 24 hour span. Id. The issue in this case is whether an employee is entitled to pay during hours considered needed for sleep. Id. At the appellate level, the courts held “there is no need to require additional compensation for the period when the employee is asleep.” Id. At 875. However, the case’s subsequent history shows that the California Supreme Court held “that the wage order does not permit the exclusion of sleep time from compensable hours worked in 24­hour shifts covered by Wage Order 4. Id. at 848­849. Therefore, according the the Supreme Court sleep hours are not excluded.

Additional Cases

Additionally, the California Labor Board has adopted the test which the California Supreme Court announced in the case of Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, and will apply that test to determine the extent of control.

The Madera court applied a two-part preliminary analysis to determine whether the time was compensable. The first part of the test measures whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer’s requirements and policies. Second, is the employee substantially restricted so as to be unable to attend to private pursuits?

Regarding the second prong of the test, the Madera court also indicated that the trier of fact must examine the restrictions cumulatively to assess their overall effect on the worker’s uncompensated time. In other words, the net impact of the restrictions must be considered. Note that the court did not hold that no restrictions as to time and space could be placed on the employee; only that the restrictions could not be substantial enough to prevent the employee from attending to private pursuits.

The factors to be considered in determining whether an employee is on controlled standby are similar to the federal guidelines and include:

(1) whether there are excessive geographical restrictions on employees’ movements; (2) whether the frequency of calls is unduly restrictive; (3) whether a required response time is unduly restrictive; (4) whether the on-call employee can easily trade his on-call responsibilities with another employee, and (6) the extent of personal activities engage d in during o n-call time. (O.L . 1998.12.28)

Conclusion

In sum, the court has ruled that in the event an employer has control of an employee and he/she is operating under the direction of that employer, there is an assumption that all hours shall be compensated, even those considered delegated for sleep.

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