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Your Legal Corner - Client Alert Blog

California On Call Time Laws Amended By California Supreme Court

Written By: Melissa C. Marsh, Esq., California Attorney, March 2016 Add to Favorites

In January 2015, the California Supreme Court held that employees who work 24 hour shifts must be paid for all time spent at the employer’s workplace including sleep time, under California Industrial Wage Order No. 4.

California law defines “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” See, California Industrial Wage Order No. 4-2001.

California’s Department Of Industrial Relations Division Of Labor Standards Enforcement (DLSE) has held that on call, or standby, time at the employer’s work site is considered “hours worked” for which the employee must be paid even if the employee does nothing but wait for something to happen. However, a different rule applies to on call (standby) time when an employee is off the premises of the employer. In these instances, whether an employee’s on-call time constitutes “hours worked” depends on the degree to which the employee is free to engage in personal activities during the on call standby time and the agreement between the parties. See, Berry v. County of Sonoma, 30 F.3d 1174 (1994) and Ramirez v. Yosemite Water Co., 20 Cal.4th 785 (1999).

The California Labor Commissioner and the courts have set forth the following 7 part test to determine whether on-call time constitutes “hours worked”:
  1. Whether there was an on-premises living requirement;
  2. Whether there were excessive geographical restrictions on employees’ 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 on call-in time.

See, DLSE Opinion Letter 1998.12.28; Gomez v. Lincare, Inc., 173 Cal.App.4th 508, 523 (2009), quoting Owens v. Local No. 169, 971 F.2d 347, 351 (9th Cir. 1992). The more restricted the employee, the more likely the employee is entitled to be paid for his/her on call standby time.

California law used to provide that when an employee is required to work a 24 hour shift and is provided with proper sleeping quarters, the employer and employee may agree to exclude up to 8 hours for designated “sleep time” so long as the employee actually gets a minimum of 6 hours of uninterrupted sleep. See Seymore v. Metson Marine, Inc. (2011). This has now changed with the recent California Supreme Court ruling in Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015).

In Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015), the California Supreme Court overturned prior court rulings (including Seymore) and held that “hours worked” under the California Labor Code and the Industrial Wage Order No. 4-2001 includes “all time spent at the employer’s workplace and under the employer’s control,” including sleep time. In other words, sleep time at an employers’ premises cannot be excluded from hours worked, even by agreement. The California Supreme Court further emphasized that the Fair Labor Standards Act which may permit employers to exclude up to 8 hours for sleep time does not preempt California law.

What California Employers and Employees Should do Now About On Call Time.

If you are an employee working in California, you should always keep track of your hours– regular hours worked, overtime hours, on call hours, hours and/or days taken off from work, for meals, etc…. And yes you should do so even if you THINK you are a salaried exempt from overtime employee.

If you employ a 24 hour security guard, make sure you are paying your employee at least the minimum wage ($10 for 2016, $10.50 for 2017) for all time spent at the workplace. If you have other types of employees that work 24-hour shifts, you should closely review your company's policies regarding compensation for "on-call" and "sleep time" situations as different rules may apply under a different industrial wage order.

If you are a California employer, you should also have an experienced California employment law attorney review your agreements, written policies, and actual procedures at least once a year to ensure you are in compliance with California’s wage and hour rules which constantly seem to constantly change.


Tags: on call time, severance
Posted In: Employment Law News 


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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.