Q: I WORK as a security guard for a building. I am required on certain days to stay on the premises for 24 hours. I am given a sleeping area. My on-duty hours are from 6 am to 6 pm. I am off-duty and considered on “stand-by” from 6 pm until 6 am the following day. During my standby hours, I am required to patrol the area every few hours or open the gates for authorized personnel. I cannot leave the premises without permission. I am paid for 8 hours of work daily at my regular rate and 4 hours at the overtime rate of time and half. I am not paid for stand-by time or sleeping hours. Am I entitled to additional wages?
A: Yes, you are. Under the law, an employee must be paid for all “hours worked.” “Hours worked” is the time during which an employee is subject to the control of the employer.
The question of whether a standby employee is under the control of the employer and should be paid was before the California Court of Appeal recently. Employees of Metson Marine, a company that provides emergency clean up of oil spills, were required to live and sleep on Metson’s ships on 14-day periods. They were paid for 12 hours of each day they were on-duty. The other 12 hours they were off-duty but were on-call and were not paid. Eight of the off-duty hours were for sleep time, three hours were for meal times, and one hour was free time.
During the off-duty hours, Metson required the employees to be on standby. When they leave the ship, they were required to carry a cell phone or pager and be able to return to ship within 30 to 45 minutes of an emergency call. Employees sued to be paid for the 12 off-duty hours saying that they were really under the control of the employer during those hours.
An employee required to sleep at the work site is subject to the employer’s control during sleeping hours (except for certain occupations covered in a different wage order). A broad definition of ‘hours worked’ includes time when an employee is required to be at the employer’s premises and subject to the employer’s control even though the employee was allowed to sleep.’
The level of the employer’s control over its employees determines whether standby hours are ‘hours worked.’ Factors to consider in evaluating the level of control exerted by the employer include:
1) whether there was an on-premises living requirement;
2) whether there were excessive geographical restrictions on employee’s movements;
3) whether the frequency of calls was unduly restrictive;
4) whether a fixed time limit for response was unduly restrictive;
5) whether the on-call employee could easily trade on-call responsibilities;
6) whether use of a pager could ease restrictions; and
7) whether the employee had actually engaged in personal activities during the on-call time.
With respect to four of the 12 standby hours, employees were required to respond to emergency calls within 45 minutes. The required response time prevented employees from going places and pursuing activities in which they might otherwise have engaged.
The employees were also required to sleep at the employer’s premises. The degree of control exercised by requiring the employees to sleep aboard ship, which is not their residence, renders the eight hours sleep time hours “hours worked” under California law. Hours worked must be paid.
However, an employer may have a prior agreement with a 24-hour employee to exclude a maximum of 8 hours of sleep time per day from compensable hours. If this is the case, employees must be provided adequate sleeping facilities and they must be able to get at least 5 hours of uninterrupted sleep. It is the burden of the employer to prove that an agreement exists.
In the Metson case, there was an implied agreement. Therefore, the employees were not entitled to be compensated for their sleep hours. However, they were entitled to be paid for the 4 hours of standby time.
This suggests that employees who have no agreement with their employer regarding sleep time, or who may have an agreement but do not get 5 hours of uninterrupted sleep, are entitled to be paid additional wages.
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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 followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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