Who Qualifies?
Not every on-call employee will be able to collect back pay for the time that they spent on-call. In fact, many employees who are on-call can only receive compensation for the time that they spent performing the duties of their job.
For example, employees who fall under Wage Order 5 (residential care givers) are not able to receive sleep pay. Nor are those who fall under Work Order 9 (Transportation drivers). These two working groups are excluded because of certain provisions built into those laws. As long as the employer provides adequate sleeping facilities, and the employee can reasonably expect to enjoy uninterrupted sleep, then the employee and employer can agree to exclude up to 8 hours of the 24 hour shift. These regulations also extend to those who work as ship crew and are required to sleep aboard the ship.
However, there are some where their “off” time is never really off duty. These are the employees who cannot go home at the end of their shift, instead they sleep at the job site. This way they are closer in case something happens, and they are able to respond to any alarms or investigate problems that may arise. Because they are on premise, and they are constantly at risk of having their sleep or “off-duty” time being interrupted, a new California Supreme Court ruling states they are never really off duty. Instead they need to be compensated for the entire time they are at the job.
Mendiola vs. CPS Security Solutions
The basis of the lawsuit of Mendiola v. CPS Security Solutions was that Wage Order 4 has no provisions to exclude sleep pay.
CPS had Mendiola sign an agreement regarding his hours of work. Part of that agreement was that he would be on the premises for 24 hours, but allowed to stay in the trailer provided during the night so he could sleep. But if an alarm went off, or something needed to be investigated, he was required to attend to it. The only pay he received was when he was actively investigating.
The argument against CPS was that the employee would never truly be able to get away from work, and that even by being present he was a deterrent to theft, vandalism, and other crimes. So even though the employee was sleeping, he was engaging in work related duties.
The California Supreme Court sided with Mendiola on his claim that he should be compensated for the time that he spent on duty, but was able to sleep.
How to File a Backpay Lawsuit
Before you can file a back pay lawsuit, you need to know whether or not your job qualifies. If you simply have an on-call phone that you answer for a few hours in the evening or on the weekends, you likely do not qualify.
However, if you have to work a 24 hour shift, some of which is unpaid and to be spent sleeping, then you may be able to file a lawsuit and collect compensation for sleep time. Your end of the process is fairly simple, and you just need to gather together all of your supporting documentation. This includes paystubs, dates where you worked, noting the hours where you were at work but unable to be paid. When you have things together, you should contact an attorney from Phillips Dayes Law Firm
Contact an Attorney
If you qualify for a backpay lawsuit, or have questions about your qualifications, contact an attorney from Phillips Dayes Law Firm today by calling 1-800-917-4000, or by filling out the contact form on this page, to schedule your free consultation.