When Should You Be Paid for On-Call Time
It is well established that an employee‟s on-call or standby time may require compensation. “Of course an employer, if he chooses, may hire a man to
do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer‟s property may be treated by the parties as a benefit to the employer.” Armour & Co. v. Wantock (1944) see Skidmore v. Swift & Co. [“Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.”]; Madera Police 7 Officers Assn. v. City of Madera (1984) [concluding officers‟ on-call mealtime was compensable hours worked].)
California courts considering whether on-call time constitutes hours worked have primarily focused on the extent of the employer‟s control. (E.g., Ghazaryan v. Diva Limousine, Ltd. (2008). The level of the employer‟s control over its employees . . . is determinative” in resolving the issue.
When an employer directs, commands or restrains an employee from leaving the work place . . . and thus prevents the employee from using the time effectively for his or her own purposes, that employee remains subject to the employer‟s control. According to the definition
of hours worked], that employee must be paid.
Courts have identified various factors bearing on an employer‟s control during on-call time: “ „(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 call-in time.‟ Gomez v. Lincare, Inc. (2009). Courts have also taken into account whether the on call waiting ours are spent primarily for the benefit of the employer and its business.
In a recent case addressing the on-call time issue, the California Supreme Court determined that the security guards of certain construction sites are entitled to be paid for waiting / on-call time. Mendiola v CPS Security Solutions, Inc. The guards here were required to “reside” in their trailers as a condition of employment and spend on call hours in their trailers or elsewhere at the work site. They were further obligated to respond immediately and in uniform if they were contacted by a dispatcher or became aware of suspicious activity. Guards could not easily trade on-call responsibilities. Guard could only request relief from a dispatcher and wait to see if a reliever was available. If no relief could be secured, as happened on occasion, guards could not leave the work site. Even if relieved, guards had to report where they were going, were subject to recall, and could not be more than 30 minutes away from the site. Restrictions were placed on non-employee visitors, pets, and alcohol use.
employment and spend on-call hours in their trailers or elsewhere at the work site.
The Mendiola Court made another significant holding - disapproving of a number of other decisions the court held that the wage orders do not permit the exclusion of 8 hours of sleep from hours worked in situations where the workers are required to sleep site, as the security guards were in this case.
do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer‟s property may be treated by the parties as a benefit to the employer.” Armour & Co. v. Wantock (1944) see Skidmore v. Swift & Co. [“Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.”]; Madera Police 7 Officers Assn. v. City of Madera (1984) [concluding officers‟ on-call mealtime was compensable hours worked].)
California courts considering whether on-call time constitutes hours worked have primarily focused on the extent of the employer‟s control. (E.g., Ghazaryan v. Diva Limousine, Ltd. (2008). The level of the employer‟s control over its employees . . . is determinative” in resolving the issue.
When an employer directs, commands or restrains an employee from leaving the work place . . . and thus prevents the employee from using the time effectively for his or her own purposes, that employee remains subject to the employer‟s control. According to the definition
of hours worked], that employee must be paid.
Courts have identified various factors bearing on an employer‟s control during on-call time: “ „(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 call-in time.‟ Gomez v. Lincare, Inc. (2009). Courts have also taken into account whether the on call waiting ours are spent primarily for the benefit of the employer and its business.
In a recent case addressing the on-call time issue, the California Supreme Court determined that the security guards of certain construction sites are entitled to be paid for waiting / on-call time. Mendiola v CPS Security Solutions, Inc. The guards here were required to “reside” in their trailers as a condition of employment and spend on call hours in their trailers or elsewhere at the work site. They were further obligated to respond immediately and in uniform if they were contacted by a dispatcher or became aware of suspicious activity. Guards could not easily trade on-call responsibilities. Guard could only request relief from a dispatcher and wait to see if a reliever was available. If no relief could be secured, as happened on occasion, guards could not leave the work site. Even if relieved, guards had to report where they were going, were subject to recall, and could not be more than 30 minutes away from the site. Restrictions were placed on non-employee visitors, pets, and alcohol use.
employment and spend on-call hours in their trailers or elsewhere at the work site.
The Mendiola Court made another significant holding - disapproving of a number of other decisions the court held that the wage orders do not permit the exclusion of 8 hours of sleep from hours worked in situations where the workers are required to sleep site, as the security guards were in this case.