A California employee may be exempt or non-exempt. An exempt employee is in a managerial, 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 waiting time pay, which can be negotiated above the minimum wage of $8.00 per hour.
If a non-exempt employee is required to stay at the employer’s place of business and respond to requests for assistance or emergencies, he or she must be paid for all hours on the premises, including waiting time.
If a non-exempt employee is not required to remain at the employer’s place of employment, but must respond to an employer’s request to return to work in an emergency, he or she must be paid for waiting time when time is controlled. instead of uncontrolled.
Hours Worked Under Federal And State Standards:
“Hours worked,” under the Federal Fair Labor Standards Act and its implementing regulations (29 CFR 778.223) for which an employee must be paid, include: ((a) all time during which an employee is required to employee is on duty or on the employer’s premises or at a prescribed place of work; and (b) all times during which an employee is permitted or permitted to work, whether or not he or she is required to do so.” .
The definition of “hours worked” adopted by the California Division of Labor Standards Enforcement in 1WC Wage Orders, Sections 2(K), on the other hand, more broadly includes: (a) all time during which the worker is subject to the employer control; and all the time during which the employee is allowed or permitted to work.
However, it should be noted that employees in the health care industry who provide patient care may work 12-hour shifts at straight-time pay. And employees required to reside on the employer’s premises are exempt from overtime pay, but not the minimum wage.
controlled standby Employer Paid Time:
Whether waiting time is considered “controlled” by the employer and must be paid for depends on the restrictions placed on the employee’s use of the time for personal purposes.
If the waiting time is completely unlimited or free for personal use, it is not controlled and payment is not required. This availability time will not be considered compensable hours worked. But if the employer so wishes, the uncontrolled availability time can be compensated below the minimum wage or through a lump sum.
Already on July 9, 1984, the Supreme Court of California, 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 Police Department de Madera converted that time into hours worked. Watch WoodPolice Officers Association 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 time off are directed primarily at compliance with employer requirements and policies”; and second, to analyze “whether employees’ off-duty time is so substantially restricted that they cannot engage in private activities.”
Both questions, according to the California Supreme Court in Woodsupmust be answered in the affirmative.
In 1992, the Ninth Circuit looked at two predominant factors in determining whether waiting time is spent primarily for the benefit of the employer, namely: (1) the degree to which employees are free to engage in personal activities; and (2) the agreements between the parties, in Owens v. Room No. 169, Ass’n. of western pulp and paper workers975 F.2d 347 (9th Cir. 1992).
In owens, up, the Ninth Circuit concluded that compensation for on-call time was not required because employees enjoyed a wide variety of personal activities during on-call hours; and accepted the guard system by continuing to work under its terms.
Callback travel time And pay:
An employer may recall a non-exempt employee on uncontrolled standby to perform additional work for an emergency after the completion of scheduled work hours.
Such an employee must be paid for all travel time spent responding to an emergency job for the employer’s clients at the client’s place of business, according to the California Wage and Hour Division.
But it’s not clear whether 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 one and one-half times the regular hourly rate or higher for actual time spent on callback; or (2) for a guaranteed number of hours of work or payment at the rate of one and one-half times the regular hourly rate or more, for each return call, in accordance with federal regulations. See Richard J. Simmons Wage and Hour Manual, Castle Publications Limited, pp. 234-235, 321-322.
Compensation for a non-exempt employee’s wait (on-call) time depends on whether or not it is controlled by the employer.
If controlled, it must be paid for; if it is not controlled, it is not necessary to pay it. Unresolved issues are payment for callback travel time and how to pay for callback time.