Q: I work part-time as a caregiver for a family, taking care of a senior in their house overnight. I start work Tuesday nights at 10:30 p.m. and stay until 6:30 a.m. Wednesday morning, and then again on Thursday night at 10:30 p.m. until 6:30 a.m. Friday morning. My job is mostly to make sure the senior I am taking care of is okay, so the family said it’s ok if I fall asleep sometimes, as long as I get up when the patient needs me. I do sometimes fall asleep in the chair in hiss room, but I always get up to take care of him when he needs me.
Recently, the family has asked me to also come on weekends, from Saturday night at 8:30 p.m. until Monday morning at 8:30 a.m. They actually put a rollaway bed in the patient’s room for me to sleep in on the weekends. I am the only caregiver on the weekends, so I am on duty for 36 hours straight. But the family only pays me for 20 hours; they say the law allows them to deduct 8 hours of sleeping time each night.
But I don’t get 8 hours of sleep because I have to wake up 2 to 3 times a night to take care of the patient. When I told them I was confused because they pay all my hours on Tuesday nights and Thursday nights without excluding sleep time, they said there were different rules for the weekend that allow them to do that, because I am staying 2 days and they provide a bed for me. Is that true?
A: No, what your employer says about whether sleeping time is considered compensable hours worked under California law is inaccurate. Although there are separate rules applied depending on whether your shift is 24 or more hours, or less than 24 hours, the facts you describe do not allow your employer to deduct sleep time for your weekend shift.
Under California law, all sleeping time of an employee required to be on duty for less than 24 hours is considered hours worked that must be paid, even if the employee is permitted to sleep or engage in other personal activities during so-called downtime. This is the rule that applies to your shifts beginning on Tuesday nights and Wednesday nights, which your employer apparently follows by paying you for all hours worked during those shifts.
For shifts that are 24 hours or longer, you and your employer may agree to exclude up to 8 hours of regularly-scheduled sleeping time, so long as: (1) adequate sleeping facilities are provided; (2) the employee can usually have an uninterrupted night’s sleep; (3) interruptions of the sleeping time for work are counted as hours worked; and (4) the employee can get at least 5 hours of sleep during the scheduled sleeping period. If the employee cannot get at least 5 hours of sleep during the regularly-scheduled sleep period, the entire time must be counted as compensable hours worked.
From your description, it does not sound like your employer either asked for or otherwise obtained your agreement to exclude sleeping time, so all 36 hours on your weekend shifts are properly considered hours worked and must be paid.
But even if your employer had obtained your prior agreement to exclude a regularly-scheduled sleeping time from your compensable hours worked, it does not sound like your circumstances satisfies all other requirements for sleeping time to be excluded. Specifically, since your described work duties expressly require that you interrupt your sleep multiple times a night to attend to the health needs of the elderly individual in your care, the requirement that you be able to usually have an uninterrupted night’s sleep cannot be satisfied. Your sleeping time during the weekends, like your sleeping time on your Tuesday and Thursday overnight shifts, is properly considered hours worked and must be paid.
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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. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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