Should employees be paid for on-call or sleep time if not free to leave work premises?

WE previously wrote an article about guards who worked at CPS Security Solutions, Inc. CPS provides “trailer guards” for construction sites in California. The guards spend the night at their jobsites in residential-type trailers. They are instructed to investigate alarms and to prevent vandalism and theft.
The guards were asked to sign an On-Call Agreement stating that the time between 9pm and 5am 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 guards sued CPS, claiming they should have been paid for all on-call hours, and for their sleep hours.
The California Supreme Court ruled early this month that the security guards’ on-call hours should be paid as hours worked. The Court pointed out that Wage Order 4, the law that governs security guards, 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.”
An employee who is subject to an employer’s control, said the court, does not have to be “working” during that time to be compensated.
Whether on-call time should be paid depends on the extent of the employer’s control. When an employer directs, commands or restrains an employee from leaving the work place and thus prevents the employee from using the time effectively for his or her own purposes, that employee remains subject to the employer’s control. According to the definition of hours worked, that employee must be paid.
Even though the On-Call Agreements designated that period as “free time,” the 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. 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. Hence, 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 Supreme Court also ruled that the employer must not exclude “sleep time” from the calculation of hours worked for employees with 24-hours shifts. The court rejected the conclusion that all the wage orders implicitly incorporate a federal law that permits the exclusion of eight hours of sleep time for employees with 24–hour shifts. The court noted that some wage orders do provide sleep exemption (such as those that govern ambulance drivers and attendants). However, Wage Order 4, which governs security guards, does not have this sleep exemption. Hence, sleep time is compensable for 24-hour shift employees.
Different wage orders apply to different employees, depending on their industries. Consult with an experience employment attorney to know whether you are entitled to additional wages under a wage order that governs your industry.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.