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Library - Employment Law
Wage Claims, Overtime & Other Employee Compensation
SHOULD
LIVE-IN EMPLOYEES BE PAID FOR SLEEP TIME?
It is standard practice for
some businesses to require employees to work 24-hour shifts and
reside within the worksite. This is especially true where the nature
of the job requires a minimum number of employees to be available 24
hours a day, seven days a week. Employees who work under mandatory
live-in arrangements include caregivers in residential care homes,
construction trailer guards, staff of senior
assisted living residences, and ambulance drivers. These employees
are usually provided specific sleep periods during the shift.
However, the demands of the job may occasionally or even regularly
require them to interrupt their sleep and attend to their work.
Questions commonly arise on how a 24-hour shift
employee should be compensated. To avoid costly litigation of claims
of this nature, it is important that both the employer and employee
acquire a better understanding of the law governing sleep time
compensation.
The general rule stated in the California Wage Orders
provides that “hours worked means the time during which an employee
is subject to the control of an employer. It includes all the time
the employee is suffered or permitted to work, whether or not
required to do so.” The overtime rule states that a non-exempt
employee who works in excess of 8 hours per day, and 40 hours per
week must be paid the overtime rate of (1) 1.5 times the regular
rate for all hours over 8 up to 12 hours, and for the first 8 hours
of the 7th consecutive work day, and (2) twice the regular rate for
all hours over twelve, and for all the hours over 8 on the 7th
consecutive work day.
The daily overtime provisions stated above does not
apply to ambulance drivers and attendants (caregivers, babysitters,
or similar occupations) scheduled for 24-hour shifts of duty. These
are employees who have agreed in writing to exclude from their daily
time worked not more than 3 meal periods of not more than 1 hour
each and a regularly scheduled uninterrupted sleeping period of not
more than 8 hours. The employer must provide adequate dormitory and
kitchen facilities for this exception to apply.
Therefore, employees will not be compensated for sleep
time only if all the following conditions are met:
1) The employee is either an ambulance driver or an
attendant;
2) The employee is assigned to a 24-hour shift;
3) The employee signed a written agreement stating that
sleep time is not compensable; and
4) The non-compensable sleep time does not exceed 8
hours and is regularly scheduled and uninterrupted.
Aside from the California rules, the federal
regulations of the Department of Labor's Wage and Hour Division also
address this question. These regulations provide that an employee
who works less than 24 hours per shift is considered to be working
for the entire shift, even if some of the time is spent sleeping and
even if facilities are furnished for sleeping..
Where an employees required to be on duty for 24 hours
or more, the employer and the employee may agree to exclude eight
hours of sleep time provided that adequate sleeping facilities are
furnished by the employer and the employee can usually enjoy an
uninterrupted night's sleep. Even where there is an agreement to
exclude sleep time, if the employee's sleeping period is interrupted
by a call to duty, the interruption must be counted as hours worked.
If the sleeping period is interrupted to such an extent that the
employee cannot get a reasonable night’s sleep, the entire sleeping
period must be counted as hours worked. For enforcement purposes, if
an employee cannot get at least five hours' sleep during the
scheduled period, the entire time is considered working time.
Courts have held that if an employee resides on the
premises on a permanent basis or for an extended period of time, any
reasonable agreement which compensates the employee for actual hours
worked which takes into consideration all of the pertinent facts
will be accepted.
©
Law Offices C. Joe Sayas, Jr.
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