Friday, January 9, 2015
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Security Guards Entitled to Pay for ‘On-Call’ Hours, S.C. Rules
By KENNETH OFGANG, Staff Writer
Security guards who patrol construction sites by day and must remain at those sites overnight in order to respond to emergencies, but are permitted to sleep during those overnight hours, must be paid for all hours they are required to remain onsite, the state Supreme Court ruled yesterday.
The state wage order governing compensation of security guards requires that they be paid for the entire period they are under the employer’s control, even if they are sleeping, Justice Carol Corrigan wrote for a unanimous court.
The ruling affirms the holding of this district’s Court of Appeal, Div. Four, that the guards must be compensated for nighttime hours spent on the jobsites during the week, while reversing a holding that the employer may deduct eight hours for sleep time on weekend days.
Hours Worked
The guards, who work for CPS Security Solutions, Inc., were on patrol for eight hours, on call for eight hours, and off-duty for eight hours each day during the week, while on weekends they were on patrol for 16 hours and on call for eight hours.
While on call, each guard was required to live in a trailer provided by the employer. While the trailers had beds, bathrooms, kitchens and other residential amenities, children and pets were banned and adult visitors were allowed only with the client’s consent.
Guards were not permitted to leave the premises for any reason unless and until a relief guard became available, in which case the guard was required to return within 30 minutes. They were not paid for on-call time unless an alarm or other circumstances required that they leave the trailer to investigate or they waited for, or were denied, a relief guard.
Guards sued in 2008. After class certification was granted, Los Angeles Superior Court Judge Jane Johnson granted the plaintiffs’ motion for summary adjudication, reasoning that the extent of the employer’s control during on-call hours, and the fact that the guards were on-call for the employer’s benefit, meant that those were “hours worked” within the meaning of Wage Order 4 of the Industrial Welfare Commission.
The wage order says that a security guard must be paid for all hours worked, with a 50 percent premium for hours worked in excess of eight in a day or 40 in a week.
Sleeping Hours
Both parties sought review after the Court of Appeal ruled, and the high court yesterday sided with the plaintiffs as to all of the on-call hours, including those during which employees were sleeping.
Corrigan explained that the state’s courts have traditionally looked to the amount of control exercised by the employer in determining when an employee is working. Among the factors that will support a finding that an on-call employee is working, she explained, are a requirement that the employee live on the premises, excessive restrictions on how far from the worksite the employee may travel, the frequency with which the employee is called upon to perform work duties, the imposition of a restrictive time limit for responding to calls.
The lower court rulings for the plaintiffs, Corrigan said, were consistent with the standard.
“The guards here were required to ‘reside’ in their trailers as a condition of employment and spend on-call hours in their trailers or elsewhere at the worksite,” the justice noted. “They were obliged to respond, immediately and in uniform, if they were contacted by a dispatcher or became aware of suspicious activity. Guards could not easily trade on-call responsibilities. They could only request relief from a dispatcher and wait to see if a reliever was available. If no relief could be secured, as happened on occasion, guards could not leave the worksite. CPS exerted control in a variety of other ways. Even if relieved, guards had to report where they were going, were subject to recall, and could be no more than 30 minutes away from the site.”
Also significant, the justice said, were the restrictions on visitors and on alcohol use in the trailers, and the fact that the primary reason for requiring that workers remain on call was to deter theft and vandalism, an integral part of the employer’s business.
Federal Regulations
As for the issue of sleep time, Corrigan rejected the Court of Appeal’s reliance on a federal regulation that other panels have followed in the past. Those cases, the justice noted, did not involve Wage Order 4, the language of which differs from those involved in the earlier cases.
Corrigan went on to say that the high court need not defer to past interpretations of the Department of Labor Standards Enforcement, whose stance on the issue has been “vacillating and contradictory” and which lacks the rulemaking authority of the IWC.
The case was argued in the Supreme Court by Howard M. Knee of the Century City office of Blank Rome and in-house attorney Jim D. Newman for Gardena-based CPS Security, Cathe L. Caraway-Howard of Playa Del Rey for the plaintiffs, and Hina B. Shah of the Women’s Employment Rights Clinic of the Golden Gate University School of Law for civil rights, labor and legal aid groups supporting the plaintiffs as amici.
The case is Mendiola v. CPS Security Solutions, Inc., 15 S.O.S. 116.
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