[COLUMN] Does sleeping time constitute work hours that should be paid?

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 opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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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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