California On-Call and Standby Time Policy
California wage and hour laws are very specific about how much employers must compensate employees. California has some of the best wage and hour protections in the nation, including employee’s rights to rest and meal breaks, minimum wage, and overtime pay.
For example, California imposes higher minimum wage standards than the federal minimum wage. Locally, employees may receive higher minimum wage rates. Incidentally, many cities throughout the state have enacted higher rates for minimum wage than the state rate.
Wage and hour laws include protections for compensation for on-call and standby time. It is essential to have wage and hour laws to protect employee’s right to fair pay when they are on-call or stand-by. If an employer is “suffered and permitted to work” by the employer, the employer owes the employee fair wages.
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What is Standby or On-Call Time?
Some industries and careers require unusual hours. For example, doctors, nurses, and other medical staff may be required to work 48 to 72-hour shifts at the hospital. They sleep whenever they can during that time, but they do not leave the hospital.
Firefighters who stay at the fire station for multiple days or security guards who remain on-site for several days are also considered on-call. These hours may also be referred to as standby time. The employees are on-site and ready to work, even though they may be doing other things or sleeping part of the time they are on-call or standby.
Employees are Entitled to Pay for On-Call and Standby Time
Several court cases have addressed the issue of reporting time pay, standby time, and on-call time. The courts found that an employee hired to wait for something to happen is entitled to compensation for those hours if the time was subject to the control of the employer. (Armour & Co. vs. Wantock (1944))
The California Division of Labor Standards Enforcement Policies and Federal Labor Laws consider time spent on standby or on-call work-related if the time is spent primarily for the employer’s benefit. The regular rate of pay for standby or on-call time might be lower than for regular working time. However, the rate of pay must be at least minimum wage.
Factors Used to Determine if an Employee is Entitled to Pay for On-Call and Standby Time
The hours worked on-call or on standby must be “controlled” by the employer. That the employee is permitted to watch television, sleep, or do personal tasks does not necessarily bar the employee from receiving on-call pay if they are under the control of the employer.
Several factors are used to determine if the time spent on standby time is compensable as hours worked. The factors are outlined in the federal case of Berry v. County of Sonoma (1994) 30 F.3d 1174.
Those factors include:
Geographical Restrictions on Employee’s Movements
The requirement to return to the employer’s property restricts the ability of the employee to travel very far from work. The worker needs to stay on-site or nearby while they wait to be called back to work.
Frequency of Calls
If an on-call employee is rarely, if ever, required to report to work while on standby time, there could be a question of whether the standby time is compensable. However, if the frequency of the calls prevents the employee from effectively using the time for personal purposes, the time is controlled by the employer. Therefore, the employee should receive compensation for the on-call time.
Fixed Time for Response
In some cases, there are strict requirements about how quickly the employee must return to work because the employee is subject to fixed time responses. For example, if an employee is on-call and must show up at work or to a job site within a short period, the time the employee is on-call is significantly controlled standby time by the employer.
The fixed time to get to work when on-call prevents the employee from using the time for personal purposes. An employee could not go to the movies, dinner, or a concert while on-call. If the employee is called into work, he will lose the money he paid because he would need to leave immediately.
Trading On-Call Time with Another Employee
Another factor the court considers is whether an employee can easily trade on-call duties with another employee. An employee may be paid for the time it takes to arrange for another employee to show up and perform the duties. The employee may not be entitled to pay for the entire on-call time if they cover their shift.
However, suppose the employee is reprimanded or there are other negative consequences for not showing up. In that case, the court could find that the on-call time was controlled by the employer and therefore compensable.
If an employee continues their personal activities with minimal disruption, a court might find that the standby time was not under the control of the employer. That would mean the employee would not be entitled to compensation for the hours they are on-call. The employee would only receive pay for the hours they worked after being called to work.
Are Employees Entitled to Pay While They Sleep?
The California Supreme Court answered this question in the case of Mendiola v. CPS Security Solutions, Inc. The court found that an employer could not exclude sleep time when calculating hours worked during on-call or standby time.
Unless California law specifically allows excluding on-call shifts from hours worked requirements, an employer cannot use an employment contract to dismiss on-call work hours. The employer may reduce the pay for sleep hours to the minimum wage level, but it cannot exclude the sleep hours completely.
Enforcing Wage and Hour Laws for Standby Time and On-Call Hours
If you believe that your employer has not paid you for all hours worked or when you were required to respond because you were on standby or on-call time, you may have several options for seeking remedies. You may want to file a civil court action based on a statutory violation of wage and hour laws or a breach of an employment contract.
You may also file a wage claim with the Labor Commissioner’s Office. Remedies for wage claims may include payment of all wages owed to the employee. Interest, injunctive release, statutory penalties, attorney fees, and court costs might also be awarded.
Before filing a claim, you might want to discuss your case with a wages and hours attorney in San Diego. You want to ensure that you chose the best option for pursuing a claim based on the facts of your case.
Contact Our San Diego Employment Lawyers for a Free Consultation
You deserve to be compensated fully for all hours worked, including standby time and on-call hours. However, your employer may dispute whether the on-call hours or standby time is “controlled” by the employer as required by law.
Our San Diego employment lawyers review your case and explain your legal rights and options. Your consultation is free, and you are under no obligation to hire our law firm after meeting with an attorney. Call Ferraro Vega today at (619) 693-7727.