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Limiting on-call activity? Pay for that time

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in Compensation and Benefits,Human Resources

The California Court of Appeal has held that employees need to be compensated for “on-call” hours if the employer substantially restricts their ability to engage in nonwork activities. However, employers may exclude eight hours of sleep time from 24-hour shifts, if an agreement between the employer and employee calls for it.

Recent case: CPS Security Solu­­­tions provides security guards for construction sites throughout Cali­for­­nia. The company’s security guards work 16-hour shifts (eight hours on duty and eight hours on call) on weekdays and 24-hour shifts (16 hours on duty and eight hours on call) on weekends. Based on an agreement signed by the company and each guard, CPS paid the guards for the time they were on duty but did not compensate them for on-call time. The guards spend that time in an on-site trailer, with restrictions: no children, no pets—and no alcohol.

Several guards brought a class-action lawsuit claiming that CPS violated Industrial Welfare Commission Wage Order No. 4 by failing to pay them for their on-call hours.

The Court of Appeal ruled that the guards are entitled to compensation for their on-call hours because the employer substantially re­­stricted the guards’ ability to engage in personal activities.

However, the court said CPS could deduct eight hours of “sleep time” from the 24-hour shifts, as long as the time was uninterrupted, the guards had a comfortable place to sleep and there was an agreement between the employer and employee that such time would be excluded. (Mendiola v. CPS Security Solu­­tions, No. B240519, Court of Appeal of California, 2nd Appel­­late District, 2013)

Final note: This is a helpful decision for employers that re­­quire employees to remain on duty for 24-hour shifts. Most significantly, it clarifies that the time an employee spends sleeping can be excluded from paid time.

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