Controlled and uncontrolled waiting time and payment

A California employee may or may not be exempt. An exempt employee occupies an administrative, executive, professional, or outside sales position, and is not entitled to pay for waiting or on-call time.

Any other employee is not exempt and is entitled to additional pay for waiting time, which can be negotiated above the minimum wage of $ 8.00 per hour.

If a nonexempt employee is required to remain at the employer’s workplace and respond to requests for assistance or emergencies, they must be paid for all hours on the premises, including waiting time.

If a nonexempt employee is not required to remain at the employer’s workplace, but must respond to an employer’s request to return to work in an emergency, they must be paid for waiting time when time is controlled. instead of uncontrolled.

Hours worked under Federal And state standards:

The “Hours Worked” under the federal Fair Labor Standards Act and implementing regulation (29 CFR 778.223) for which an employee must be paid include: (a) all the time during which an employee must be on duty service or being on the employer’s premises or at a prescribed workplace, and (b) all the time during which an employee is permitted or permitted to work, whether or not he is required to do so. “

The definition of “hours worked” adopted by the California Division of Labor Standards Enforcement in the 1WC Wage Orders, Sections 2 (K), on the other hand, includes more broadly: (a) all the time during which the worker is subject to the control of the employer; and all the time during which the employee suffers or is allowed to work.

However, it should be noted that healthcare industry employees who provide patient care may work 12-hour shifts with regular pay. And employees who must reside on the employer’s premises are exempt from overtime pay but not minimum wage.

Controlled waiting Employer paid time:

Whether the employer considers waiting time to be “controlled” and must be paid for depends on the restrictions placed on the use of time for the employee’s personal purposes.

If the waiting time is completely unlimited or free for use for personal purposes, it is not controlled and there is no need to pay for it. This waiting time will not be considered compensable hours worked. But if the employer so wishes, the uncontrolled waiting time can be compensated below the minimum wage or by a lump sum.

As early as July 9, 1984, the California Supreme Court, through Judge Reynoso, adopted a two-step analysis to conclude that the substantial limitations imposed on the time (Code 7) of the officers, sergeants and dispatchers of the Department The Madera Police Department converted that time into hours worked. Watch WoodAssociation of Police Officers. v. City of Wood(1984), 36 Cal.3d 403; 204 Cal.Rptr. 422; 682 P.2d 1087.

The two-step analysis consists of: first, examining “whether restrictions on downtime are primarily aimed at meeting employer requirements and policies”; and second, to analyze “whether the employees’ off-duty time is so substantially restricted that they cannot engage in private activities.”

Both questions, according to the California Supreme Court in Wood, supra, must be answered affirmatively.

In 1992, the Ninth Circuit examined two predominant factors in determining whether waiting time is spent primarily to the benefit of the employer, namely: (1) the degree to which employees are free to participate in personal activities; and (2) the agreements between the parties, in Owens v. Local No. 169, Ass’n. of western pulp and paper workers, 975 F. 2d 347 (9th Cir. 1992).

In Owens, above, the Ninth Circuit concluded that no on-call compensation was required because employees enjoyed a wide variety of personal activities during on-call hours; and they accepted the guard system by continuing to work under its terms.

Callback travel time And pay:

An employer may call a non-exempt employee on uncontrolled hold to perform additional work in an emergency after the completion of scheduled work hours.

Said employee must be paid for all travel time spent responding to emergency work by employer clients at the client’s workplace, according to the California Wage and Hour Division.

But it is not clear whether the travel time spent by an employee for a callback to and from the employer’s regular workplace is compensable. Because the California Wage and Hour Division does not have an official position on this, many California employers do not pay for callback travel time.

The work time involved in a callback is “hours worked” and must be compensated by methods acceptable to the California Wage and Hour Division, namely: (1) at a rate of one and a half times the regular rate per hour or more. for the actual time spent on the callback; or (2) for a guaranteed number of hours of work or pay at the rate of one and a half times the regular hourly rate or more, for each callback, in accordance with federal regulations. See Richard J. Simmons Wage and Hour Manual, Castle Publications Limited, pp. 234-235, 321-322.

Conclusion:

Compensation for waiting time (on call) for a nonexempt employee depends on whether or not it is controlled by the employer.

If it is controlled, it must be paid for; If it is not controlled, there is no need to pay for it. The outstanding issues are the payment of the travel time of the callback and the form of payment of the time spent in the callback.

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