I handled a case on behalf of an employee who was not compensated for “on-call” or “standby time.” The employee worked as a security guard and was required to provide security at construction sites or developmental properties.
For years, the employee was scheduled to work Monday through Friday, during which days he would work 16-hour consecutive shifts. Moreover, he was also scheduled to work both Saturday and Sunday, during which days he would also work 24-hour consecutive shifts. Altogether, the employee worked 7 consecutive days and over 140 hours a week. The employer failed to compensate the employee for his 16 and 24 hour shifts.
The employer committed numerous wage and hour Violations. The employee was not paid overtime for the work he performed over eight hours per day or forty hours per week, was not paid double time for work performed over twelve hours per day, was not paid time and a half his regular rate of pay for the first eight hours worked on the seventh consecutive day of work in any workweek, and was not paid the regular rate for hours worked in excess of eight on the seventh day. Furthermore, he was not paid wages earned, nor was he provided meal periods or compensation in lieu thereof.
During his shifts, the employee was the only security guard on duty. The employer required the employee to stay on the construction premises for the duration of his 16 and 24 hour shifts. Consequently, the employee was confined to the lot until the end of his shift. Once confined, the employee’s sole duties were related to work. The employee was required to check badge numbers for over 360 persons entering and exiting the property and to remain on call to respond immediately (within minutes) to any disturbances. The employee was also required to conduct methodical patrols of the lot on an hourly basis. These hourly patrols required the employee to check the entire lot (including the buildings and structures within it) to ensure that all doors on the premises, including perimeter gates, were locked. These demanding duties deprived the employee of uninterrupted breaks and meal periods.
The California Division of Labor Standards Enforcement (“DLSE”) has consistently held that hours for which an employee has been hired to do nothing or merely wait for something to happen are hours subject to the control of the employee, and constitute hours worked. Armour Co. v. Wantock (1944) 323 U.S. 126. The DLSE defines “controlled standby” as follows: if the employee’s time is so restricted that he cannot pursue personal activities and come and go as he pleases, the employer is considered to have direction and control of the employee. The DLSE applies a two-part preliminary analysis to determine whether the time was compensable. The first part measures whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer’s requirements and policies. The second part looks to whether the employee is substantially restricted so as to be unable to attend to private pursuits. DLSE Manual Sections 220.127.116.11 and 18.104.22.168. Moreover, the DLSE looks to “[w]heter time is spent predominantly for the employer’s benefit or for the employee’s.”DLSE Enforcement Manuel Section 22.214.171.124.
Here, the restrictions placed on the employee were directed solely toward fulfilling the employer’s policy of providing security to the employer’s clients by having a security guard ever-present on the construction site premises. The employee had to be in his uniform at all times and respond within minutes to the employer’s calls about disturbances. Moreover, the employee was physically confined to the construction site and was therefore unable to engage in private pursuits, which included but were not limited to enjoying the comfort of his own home or the companionship of his wife and family.
The ultimate consideration in applying the California law is determining the “extent” of the control exercised. The DLSE considered the following four standards to determine if “on call” time is compensable: (1) Geographical restrictions on the employees’ movements; (2) Required response time; (3) Nature of the employment; and (4) The extent the employer’s policy impact personal activities during on call time. DLSE Opinion Letters: 1993.03.31; 1992.01.28; 1998.12.28; 2001.3.22.
Here, the employee was required to remain on the site for the duration of his shift. Additionally, he was required by the employer to be at his post and respond immediately (i.e., within minutes) to any activity such as the entry of an unauthorized person into the lot. Moreover, the nature of his employment required him to wear his uniform at all times and to methodically check the lot hourly. Finally, the employer’s policy of providing security to the employer’s clients impacted the employee’s ability to engage in private pursuits.
The California employment lawyers at The Nourmand Law Firm can help you with any wage and hour claims you may have.