May 23

Slack Lives Matter: Why Sleeping Is Paid Work

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Dream on! In California, your employer must pay you for all time you spend on controlled stand-by - even if you're fast asleep.

Dream on! In California, your employer must pay you for all time you spend on controlled stand-by – even if you’re fast asleep.

If you’re a security guard, limousine driver, or other on-call employee who sleeps on the job, dream on! Sleeping is compensable “work” if it occurs on “controlled stand-by.” California law thus embodies a simple yet important principle: slack lives matter. So whether you’re hard at work or hardly working, California law entitles you to minimum wage for sleeping on controlled stand-by. If your employer fails to pay you for all time you spend on controlled stand-by, you can sue him for enormous compensation.

Is Sleeping on Controlled Stand-By “Work” in California?

Every hour of an employee’s stand-by time is compensable work if his employer so controls him that he can’t use the time for his own purposes. Whether an employer controls an employee depends on many factors: (1) whether the employer requires the employee to live on-site; (2) whether the employer imposes excessive geographical restrictions on him; (3) whether the frequency of the calls and the employee’s time to respond to them are unduly restrictive; (4) whether he can easily trade on-call duties with another employee; (5) whether a cell phone can ease restrictions; and (6) whether he engages in personal activities.1

But not all sleeping during controlled stand-by time is compensable. The rule that all such time is compensable has two exceptions. First, ambulance drivers and attendants who work 24-hour shifts can’t earn overtime pay for a regularly scheduled, uninterrupted, eight-hour sleeping period if they agree in writing to exclude that period from their hours of work.2 Second, “public housekeeping industry” employees who must “reside on the employment premises” earn wages only for “carrying out assigned duties.”3 Thus, on-site apartment managers and motel clerks don’t earn wages for sleeping during controlled stand-by.4

What If Your Employer Won’t Pay You for All Controlled Stand-By Time?

If your employer fails to pay you minimum wage for all controlled stand-by time, you can sue for massive compensation. Labor Code sections 1194 and 1194.2 entitles an employee to: (1) the balance of all unpaid wages; and (2) liquidated damages equal to the balance of his unpaid wages.5 Thus, an employer who fails to pay an employee the minimum wage (currently $10 per hour statewide but higher in some municipalities) for eight hours of controlled stand-by time per day over a period of 100 workdays will owe him $8,000 in unpaid wages and $8,000 in liquidated damages (i.e., 8 hrs. @ $10/hr. for 100 days).

Moreover, an employee who doesn’t receive minimum wage for all controlled stand-by time can sue as a “private attorney general” on behalf of all aggrieved current and former employees. The employee can collect a civil penalty of $100 per aggrieved employee per pay period for an initial violation and $200 per aggrieved employee per pay period for each subsequent violation.6 Thus, an employer who fails to pay 10 employees for controlled stand-by time over 26 biweekly pay periods will owe $1,000 for the initial violation ($100 x 10 employees) and $50,000 for the subsequent violations ($200 x 10 employees x 25 pay periods). 

Sweet dreams!

  1. Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th. 833 (2015). 

  2. Wage Order No. 9-2001(3)(K). 

  3. Wage Order No. 5-2001(2)(K), (P). 

  4. Isner v. Falkenberg, 160 Cal.App.4th 1393 (2008). 

  5. Lab. Code §§1194, 1194.2(a). 

  6. Lab. Code §2699(f)(2). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.