Paying someone to do nothing is a tough pill for an employer to swallow. However, that is exactly what employers must do if they control their employees’ “off” hours with controlled standby or on-call duty.
In a case decided on July 3, 2013, CPS Security Solutions was ordered to pay its employees for time spent on-call because CPS has excercised significant control over its employees’ activities. CPS provided security trailers at construction sites. Security guards worked a weekday shift and a weekend shift. During weekdays the guards were on patrol from 5 am to 7 am and then again from 3 pm to 9 pm. They were free to come and go as they pleased from 7 am to 3 pm on the weekdays. On weekends, guards patroled from 5 am to 9 pm. Every day from 9 pm to 5 am the guards were on-call at the job site or in their trailers located on the job site.
Guards could not leave the jobsite at night unless they notified dispatch and CPS could provide a relief guard. Guards were required to carry a pager and stay within 30 minutes of the job site in the event of an incident. They could not have children or pets in the trailers and adults were welcome only if approved by the client. Alcohol was also prohibited. Guards were not paid for this 8-hour period unless they actively investigated a suspicious incident.
Under California law, an employee is working if (s)he is subject to the control of the employer. Thus, all on-call or standby situations require an examination of the employer’s control on workers. Factors relevant to the analysis include geographical limitations, the frequency of work interruptions, a limited response time, the ability of a worker to trade on-call duties, and the worker’s ability to engage in personal pursuits during on-call time.
In this case, the court concluded that CPS exercised significant control, and that the workers’ on-call time constituted work for which they should be paid. The court did allow CPS to exclude 8 hours on the weekend shifts, as long as the time was uninterrupted, as sleep time. Nevertheless, this ruling resulted in substantial liability for CPS in the form of unpaid wages, penalties and attorneys’ fees.