LEGAL GUIDE
Written by attorney Marilynn Mika Spencer | Aug 4, 2013

Should I Be Paid For Standby Time? (California Law)

Whether an employer must pay an employee for standby time depends on whether the time is “controlled standby" or “uncontrolled standby." In simple terms, this means that if the employee cannot use his or her time for personal reasons, the time is controlled and considered time worked. However, as with most areas of the law, applying the rule to each situation requires analysis.

The California Division of Labor Standards Enforcement (DLSE) publishes an Enforcement Manual. The Manual explains controlled standby as follows: “If the employee’s time is so restricted that [he or she] cannot pursue personal activities and come and go as he [or she] pleases, the employer is considered to have direction and control of the employee." If the employer has direction and control, the time is compensable work time.

The DLSE uses the two-part test in the California Supreme Court case of Madera Police Officers Assn. v. City of Madera, 36 Cal.3d 403(1984) to decide whether standby time

is compensable. Part One measures whether the restrictions on the employee are primarily directed toward fulfilling the employer’s requirements and policies. Part Two asks whether the employee is substantially restricted to the point where he or she cannot attend to private pursuits. It is this second part that requires the most analysis. The courts will review the overall effect of the employer’s restrictions on the employee, not whether the employee is restricted at one particular slice of time.

California law looks at the same factors as in the federal case of Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir.1994), including:

– whether there are excessive geographical restrictions on employees’ movements;

– whether the frequency of calls [to work or return to work] is unduly restrictive;

– whether a required response time is unduly restrictive;

– whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and

– whether the extent of personal activities engaged in during on-call time.

DLSE Opinion Letter 1998.12.28.

Another way of describing this is to consider if the employee was “engaged to wait" or “waited to be engaged." Did the employer hire the employee for the purpose (or partial purpose) of waiting to work? Or is the employee waiting for the opportunity to work? This is highly dependent on the specific facts. Owens v. Local No. 169, Ass'n of W. Pulp and Paper Workers, 971 F.2d 347, 354 (9th Cir.1992)

If you are not sure whether you are eligible for standby pay, your best course is to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

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