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When Should You Be Paid for On-Call Time

security guard on-call pay
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. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case