Q: AS an onsite security guard, I am required to stay on the premises for 24 hours. My on-duty hours are from 6am to 6pm. I am off-duty and considered on “on-call” from 6pm until 6am the following day. I am given a sleeping area. I cannot leave the premises without permission. I am paid for 8 hours of work daily at my regular rate and 4 hours at the overtime rate of time and half. I am not paid for on-call time. Am I entitled to additional pay?
A: Yes, you are. Under the law, an employee must be paid for all “hours worked.” “Hours worked” is the time during which an employee is subject to the control of the employer.
The question of whether the hours spent on the work premises while under the employer’s control should be paid was before the California Court of Appeal this year.
CPS provides security guards for construction sites in California. Employees were designated “trailer guards” because they spend the night at their jobsites in residential-type trailers. Guards are thus available to investigate alarms and to prevent vandalism and theft. The trailer guards were asked to sign an On-Call Agreement stating that the time between 9 p.m. and 5 a.m. are on-call hours and non-compensable unless they spent actual time investigating suspicious activity on the premises. The guards spent 16 hours on weekdays at the jobsite, 8 hours were paid and the other 8 were on-call. They spent 24 hours at the jobsite on weekends, 8 were paid, 8 on-call and 8 for unpaid sleep time.
The trailer guards sued CPS, claiming they should have been paid for the on-call hours. The trial court agreed, and required CPS to pay the guards for all on-call time spent in the trailers. CPS appealed contending that 1) the trailer guards are merely “on call,” free to engage in personal activities and not actively engaged in work unless an alarm sounds or they are investigating; and 2) the on-call period is excludable “sleep time.”
The Court of Appeal concluded that the on-call period constitute hours worked, but CPS may exclude eight hours a day as sleep time during the guards’ 24-hour weekend shifts, if CPS had provided the guards a comfortable place to sleep, the sleep time is not interrupted (interruptions must be paid) and the guards could have at least five consecutive hours of uninterrupted sleep.
The appellate court agreed with the trial court’s finding that that the trailer guards’ on-call hours represent hours worked. By their presence on site during the on-call hours, the guards performed an important function for their employer and its clients: they deterred theft and vandalism. CPS promised its clients security services throughout the night and for 24 hours on Saturday and Sunday, and would be in breach of their contract if no security guards were present between 9:00 p.m. and 5:00 a.m. Even though the On-Call Agreements designated that period as “free time,” the trailer guards were not free to leave at will. A guard may leave only when a reliever is available. If they leave, they were required to take a pager or radio telephone so they may be called back; and they are required to remain within 30 minutes of the site.
Most important, the trailer guards did not enjoy the normal freedoms of a typical off-duty worker, as they were forbidden to have children, pets or alcohol in the trailers and cannot entertain or visit with adult friends or family without special permission. Based on these, the court concluded that the degree of control exercised by the employer during the trailer guards’ on-call time falls under the definition of “hours worked” per California law, and such time should be paid.
The court found, however, where the trailer guards were required to be on the premises for 24 hours on the weekends, the On-Call Agreement was right to permit eight hours of unpaid uninterrupted sleep time to be excluded from their 24-hour shifts.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.