Mendiola v. CPS Security Solutions: Court Of Appeal Issues Mixed Ruling Re. On Call Time and Sleep Time In Security Guard Action

Mendiola v. CPS Security Solutions, Inc. (7/3/13) --- Cal.App.4th --- presents a couple of interesting issues on compensable work time, on call time, and sleep time.

The plaintiffs worked as security guards for CPS, which provides security guard services at construction sites. CPS designates some of its guards as "trailer guards," who remain on the work site in residential trailers 16 hours per day during the week (eight hours "on duty" and eight hours "on call") and 24 hours per day on the weekends (16 hours "on duty" and eight hours "on call"). During the nighttime on call periods, CPS generally compensates the guards only for time spent actively conducting investigations.

The plaintiffs filed a putative class action, and the trial court granted certification.  The court then granted the guards' motion for summary adjudication and motion for a preliminary injunction requiring CPS to compensate them for all on call time spent on the premises. CPS appealed, and the Court affirmed in part and reversed in part.  

First, the Court affirmed the trial court's finding that the trailer guards' on call time was "hours worked," as defined by the applicable Wage Order (Order No. 4-2001). Slip op. at 16-27. 

By their presence on site during the on-call hours, the guards perform an important function for their employer and its clients: they deter theft and vandalism. CPS promises its clients security services throughout the night and for 24 hours on Saturday and Sunday, and would be in breach if no security guards were present between 9:00 p.m. and 5:00 a.m. The parties' On-Call Agreements designate that period as “free time,” but it is clear from the Agreements and the stipulated facts that trailer guards are not free to leave at will. A guard may leave only when and if a reliever is available. From this, it can reasonably be said that the restrictions on the on-call time are “primarily directed toward the fulfillment of the employer's requirements,” and the guards are “substantially restricted” in their ability to engage in private pursuits.

Slip op. at 21.  

The Court emphasized that the trailer guards did not "enjoy the normal freedoms of a typical off-duty worker" during their on call hours. Slip op. at 22-23. 

The Court declined to adopt the federal rule embodied in 29 CFR 785.23 that employees who reside on their employers' premises are not deemed to be working at all times that they are on premises. First, the trailer guards here did not have "complete freedom from all duties" and could not leave the premises during their on call time. Slip op. at 24-25. Second, the Court found no evidence of the IWC's intent to adopt the federal standard, and its adoption would eliminate the greater protections available to employees under California law.  Slip op. at 26-27. 

Second, the Court reversed the trial court's holding that CPS could not deduct up to eight hours of regularly scheduled "sleep time" when the trailer guards worked 24 hour shifts.  Slip op. at 27. Relying on Monzon v. Schaefer Ambulance Service (1990) 224 Cal.App.3d 16 and Seymore v. Metson Marine, Inc. (2011) 194, Cal.App.4th 361, the Court held that the ability to deduct for sleep time is not limited to the transportation industry, which is covered by Wage Order 9-2001. 

While that wage order contained a specific provision permitting an employer and employee to agree in writing to exclude sleep time from compensation, neither court relied on the provision to exclude the eight hours of sleep time. Instead, both courts looked to the wage order's definition of “hours worked” and found it comparable to the federal definition.

Slip op. at 30. The Court then held that the employer and trailer guard employees had entered into an agreement to exclude eight hours of sleep time from the guards' compensable time.  Slip op. at 32. 

The opinion is available here.