An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is so restricted that he is effectively engaged to wait. 606

1. C ONTROLLED VS . U NCONTROLLED The time an employee spends waiting for something to happen may be considered hours worked if the hours are subject to the control of the school. 607 If the school restricts the stand-by or on- call time so that an employee is unable to engage in personal pursuits, the time is considered subject to the control of the school and constitutes hours worked. 608 This is especially true if the employee is required to remain at the school and respond to emergency calls. Employees must be paid for all hours worked even if the employee is doing nothing more than waiting for something to happen. 609 However, the school may pay a different rate for on call or stand by hours as long as the rate is set before the work is performed and the amount is at least minimum wage. 610 Alternatively, an employee who has the choice of being available or not available to respond to a request by the school to return to work for an emergency may be on uncontrolled standby if the employee is able to use his or her time for personal pursuits. Such “free” standby time is not under the control of the school and, thus, need not be paid. 611 Schools may pay an employee a stipend for being available in an uncontrolled standby situation to return to work if called. In an uncontrolled standby, the employee agrees to be available to return to work, but is otherwise free to engage in other activities. 612 2. E MPLOYEES L IVING O N S CHOOL P REMISES Schools that require employees to live on the premises may be obligated to pay wages for all time spent in their living quarters or elsewhere at the worksite. This can even include time spent engaging in personal activities such as sleeping, showering, eating, reading, watching television and browsing the Internet. Case Study: Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833. CPS Security Solutions employed on-call guards to provide security at construction sites. Part of the guard’s day was spent on active patrol, while evenings were on call at the site, followed by 8 hours off duty. On weekends the guards were on patrol for 16 hours and on call for 8 hours. While on-call, the guards were required to reside in a trailer provided by CPS, which were about 200 square feet in size and contained a bed, bathroom, kitchen, heating and air conditioning. Guards could keep their personal items in the trailer and use their time on call as they chose. They were, however, not permitted to drink alcohol, keep pets, or have children visit the site.

If an on-call guard wanted to leave the worksite, he first had to find another employee who could relieve him of his post. If relieved, he still had to be accessible by pager and able to return within 30 minutes. If no relief was available, he had to remain on site, no matter the circumstance. CPS guards received no compensation for on call time unless they were required to

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 171