Asian Journal- The Filipino-American Community Newspaper

It is standard practice for some businesses to require employees to work 24-hour shifts and reside within the worksite. This is especially true where the nature of the job requires a minimum number of employees to be available 24 hours a day, seven days a week. Employees who work under mandatory live-in arrangements include caregivers in residential care homes, construction trailer guards, staff of senior assisted living residences, and ambulance drivers. These employees are usually provided specific sleep periods during the shift. However, the demands of the job may occasionally or even regularly require them to interrupt their sleep and attend to their work.

Questions commonly arise on how a 24-hour shift employee should be compensated. To avoid costly litigation of claims of this nature, it is important that both the employer and employee acquire a better understanding of the law governing sleep time compensation.

The general rule stated in the California Wage Orders provides that "hours worked means the time during which an employee is subject to the control of an employer. It includes all the time the employee is suffered or permitted to work, whether or not required to do so." The overtime rule states that a non-exempt employee who works in excess of 8 hours per day, and 40 hours per week must be paid the overtime rate of (1) 1.5 times the regular rate for all hours over 8 up to 12 hours, and for the first 8 hours of the 7^th consecutive work day, and (2) twice the regular rate for all hours over twelve, and for all the hours over 8 on the 7th consecutive work day.

The daily overtime provisions stated above does not apply to ambulance drivers and attendants (caregivers, babysitters, or similar occupations) scheduled for 24-hour shifts of duty. These are employees who have agreed in writing to exclude from their daily time worked not more than 3 meal periods of not more than 1 hour each and a regularly scheduled uninterrupted sleeping period of not more than 8 hours. The employer must provide adequate dormitory and kitchen facilities for this exception to apply.

Therefore, employees will not be compensated for sleep time only if all the following conditions are met:

1) The employee is either an ambulance driver or an attendant;

2) The employee is assigned to a 24-hour shift;

3) The employee signed a written agreement stating that sleep time is not compensable; and

4) The non-compensable sleep time does not exceed 8 hours and is regularly scheduled and uninterrupted.

Aside from the California rules, the federal regulations of the Department of Labor’s Wage and Hour Division also address this question. These regulations provide that an employee who works less than 24 hours per shift is considered to be working for the entire shift, even if some of the time is spent sleeping and even if facilities are furnished for sleeping.

Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude eight hours of sleep time provided that adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. Even where there is an agreement to exclude sleep time, if the employee’s sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleeping period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire sleeping period must be counted as hours worked. For enforcement purposes, if an employee cannot get at least five hours’ sleep during the scheduled period, the entire time is considered working time.

Courts have held that if an employee resides on the premises on a permanent basis or for an extended period of time, any reasonable agreement which compensates the employee for actual hours worked which takes into consideration all of the pertinent facts will be accepted.

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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 big business. He 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: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. He is a graduate of University Law Center Washington, D.C. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.

( www.asianjournal.com )

( Published on December 6, 2008 in Asian Journal Los Angeles p. C3 )