Metropolitan News-Enterprise


Wednesday, March 19, 2008


Page 1


Live-In Employees Not Entitled to Pay for Time ‘On Call’—C.A.


By STEVEN M. ELLIS, Staff Writer


Employees who are required to reside on the premises of their workplace are not entitled to compensation for time they spend simply being available to respond to duties that might arise, this district’s Court of Appeal ruled yesterday.

Affirming Los Angeles Superior Court Judge Lee Smalley Edmon’s grant of summary judgment against two resident employees of a housing complex on their action for unpaid wages for time they spent on call waiting to respond to tenants’ needs, Div. Eight held that the employees were only entitled to compensation for the time they spent actually responding to emergencies, and not for the time they spent waiting for them to occur.

Ron and Sharon Isner brought the action against Falkenberg/Gilliam & Associates, Inc., a property management company specializing in managing nonprofit housing for the elderly, in 2004 after leaving their jobs with the company as resident employees.

Resided on Premises

The Isners, who are husband and wife, were continuously employed at one of three properties the company managed from 1998 until 2004 in capacities that required them to live on the premises.

Prior to beginning the employment at each property, the Isners signed resident employee employment agreements requiring them to remain on the premises within hearing distance of emergency alarm systems and the telephone during specified periods of time, but otherwise allowing them to use on-call time as they saw fit. The agreement generally provided that all time spent responding to emergencies would be counted as hours worked, but that no other on-call hours would be counted.

The Isners were always on call together and, with limited exceptions, both always stayed within audible range of the telephone and alarm. They alternated on-call time with other resident employees and only stayed at the complexes when on duty, despite being given an apartment in which to live in each building in which they worked.

Free Time

While on call, and when not responding to emergencies, the Isners slept, ate, talked on their personal telephone, used the internet, played computer games, read magazines and watched television in their apartment.

However, although they had radios with which to communicate with one another and other resident employees, they did not have pagers and could not engage in activities that would put them outside of audible range of the telephone and alarm, such as going to the pool or walking around the complex.

After an attempt to arbitrate the Isners’ claim failed, the pair filed a class action suit against Falkenberg on behalf of all resident employees, contending that they were entitled to payment for all of the hours that they were on call and confined to their apartment or the building office.

Falkenberg moved for summary judgment, arguing that it was required to pay the Isners only for the hours they were actually performing duties during their on-call time, and the trial court—citing Brewer v. Patel (1993) 20 Cal.App.4th 1017, where the Court of Appeal held that a motel clerk who was required to live on the premises was only entitled under California Code of Regulations, title 8, Sec. 11050 to compensation for the time he actually provided services, and not the entire time he spent at the motel—granted the motion.

On appeal, the Isners tried to distinguish the case from Brewer by arguing that their employment had been more like a security guard or receptionist who has to remain at a duty station than the motel clerk in Brewer “who could at least enjoy the amenities of the motel.” They also argued that the Brewer clerk could leave the premises if he informed the owner so that the owner could find a replacement, whereas they could not.

But the Court of Appeal, in an opinion by Justice Laurence D. Rubin, rejected both arguments and held Edmon’s grant of summary judgment to be proper.

‘Anaalogous’ Requirement

Examining Brewer, Rubin wrote that “the only reasonable inference from the fact that the motel clerk was ‘required to keep the motel office open from 6:00 a.m. to 10:00 p.m. every day’ and ‘generally expected to remain on the motel premises 24 hours a day’ is that he had to be within sight or sound of the office during all of those hours so as to be available to respond to the needs of motel guests,” a requirement he said was “analogous” to that imposed on the Isners.

He then rebuffed the Isners’ second argument by noting that although Falkenberg scheduled the resident employees’ on-call time, alternating between resident employees and resident assistants, the times could be switched and the Isners, “like the motel clerk in Brewer,” could leave the premises merely by making advance arrangements to do so.

Presiding Justice Candace Cooper and Justice Madeleine Flier joined Rubin in his opinion.

Falkenberg’s attorney, Sandra L. Rappaport of Hanson Bridgett Marcus Vlahos & Rudy, told the MetNews that her clients were “thrilled” by the “significant” decision.

She said that the matter represented a “big issue for employers” because “the idea that [resident] employees would be paid for time at home…would fundamentally change the employment  relationship” and leave “a lot of employers subject to a lot of liability.” She also predicted that the decision would be “welcomed by employers of residential employees in the state.”

However the Isners’ attorney, Mark R. Thierman of the Thierman Law Firm in Reno, Nev., said that the decision was “just sad” and that it “doesn’t seem to sit right.”

Thierman said that “it would be one thing if they could do what they wanted, but to have to sit there within earshot is kind of like house arrest.”

While unsure whether his clients would choose to appeal, he said that the matter would remain “a problem for the industry,” and predicted that the “next swipe” for resident employees would be to bring a similar action under federal laws which he said were “more pro-employee.”

The case is Isner v. Falkenberg/Gilliam & Associates, Inc., B195860.


Copyright 2008, Metropolitan News Company