Employee Rights: Must Employees Be Paid For On-Call Time?

Does a company have to pay security guards for on-call time, including sleep, they are required to spend at construction worksites where they are subject to their employer’s control? Yes, according to the California Supreme Court.

In Mendiola v. CPS Security Solutions, Inc., the Court held that the security guards were entitled to compensation for on-call time because they were subject to extensive control by their employer. Courts have held that the level of control an employer has over an employee’s on-call time determines if the time counts as hours worked and must therefore be paid.

The security guards in Mendiola¬†were required by their employer to live in trailers on the construction worksites and spend their on-call time at the trailers or elsewhere at the worksites. The guards had to respond to incidents iimmediately and in uniform if requested by dispatch or they needed to investigate suspicious activity. They could not leave the worksite, even during personal emergencies, unless dispatch approved other guards to cover them. Even when leaving the worksite, guards had to tell dispatch where they were going, could be ordered to return at any time, and could not be more than 30 minutes away from the worksite. The guards’ on-call time was primarily for the benefit of their employer, even if they engaged in some personal activities during this time.

The Court also found that the security guards were entitled to sleep time which they spent in trailers on the worksites. The guards lived and slept in trailers on worksites provided by their employer. Wage Order 4 requires employers to pay minimum wage and overtime wages to employees for hours worked. Some professions, like ambulance drivers and attendants, enter into written agreements to exclude sleep time from paid time in 24 hour shifts. But, Wage Order 4 does not contain an exception for sleeping time and security guards must be paid for sleep time during 24 hour shifts, the Court held.

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