Date:
03/27/2008
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Residential Employees Not Entitled To Pay For “On-Call” Time

California Employment Law Update

The Isner case addresses the special circumstance of employers that require their employees to reside where they work. Husband and wife Plaintiffs Ron and Sharon Isner worked as apartment managers for Defendant Falkenberg/Gilliam & Associates, Inc., a property management company specializing in managing nonprofit housing for the elderly. As a condition of their employment, Plaintiffs had to remain on the premises within hearing distance of emergency alarm systems and the telephone during specified periods of time, but otherwise were allowed to use on-call time as they saw fit. While on call, they could engage in personal activities - such as watching television, making personal telephone calls, and even sleeping - so long as they remained within audible range of the telephone or alarm. Plaintiffs were always on call together and, with limited exceptions, both always stayed within audible range of the telephone and alarm. They alternated on-call time with other resident employees and only stayed at the complex when on duty, despite being given an apartment in which to live. They sued Defendant for unpaid wages for hours worked, alleging that they were entitled to pay not just for the hours they spent responding to emergencies while on call, but for all of the hours they spent on-call and thus confined to the apartment complex. The trial court granted summary judgment in favor of Defendant, and the Court of Appeal affirmed.

Following the line of reasoning set forth in Brewer v. Patel, 20 Cal.App.4th 1017 (1993), the court held that residential employees like the Plaintiffs were not entitled to compensation for on-call time. In Brewer, the court ruled that a motel employee was entitled to be paid for time he spent actually performing work-related duties, not all the hours he was physically at the motel. Plaintiffs tried to distinguish their case from Brewer by arguing that their situation was comparable to a security guard or receptionist required to remain at a duty station. They also argued that the Brewer clerk could leave the premises if he informed the owner so that the owner could find a replacement, whereas they could not.

The court rebuffed both arguments. First, the court reasoned that “the only reasonable inference from the fact that the motel clerk was ‘required to keep the motel office open from 6:00 a.m. to 10:00 p.m. every day’ and ‘generally expected to remain on the motel premises 24 hours a day’ is that he had to be within sight or sound of the office during all of those hours so as to be available to respond to the needs of motel guests,” a requirement the court believed was analogous to that imposed on Plaintiffs. The court also rejected Plaintiffs’ second argument by noting that although Defendant scheduled their on-call time, alternating between resident employees and resident assistants, the times could be switched and Plaintiffs, just like the motel clerk in Brewer, could leave the premises merely by making advance arrangements with management to do so. 

The Isner case is good news for businesses that use residential employees in California, as it confirms that they are only required to compensate them for hours of work actually performed. This is significant, as the time spent performing assigned duties, such as responding to emergency calls, can be much less than the time an employee spends simply being available to perform those duties.

The Isner case serves as reminder for all California employers who require on-call duty to familiarize themselves with the laws pertaining to compensation of on-call time. Whether on-call time is considered compensable must be determined by looking at the restrictions placed on the employee. The Department of Labor Standards Enforcement (“DLSE”), the administrative agency empowered to enforce California’s labor laws, focuses primarily on the extent to which the employee is subject to the control of the employer. If, while on-call, the employee is so restricted as to be unable to engage in personal activities, the time is subject to the control of the employer and constitutes hours worked. The inquiry is not whether employees are prevented from participating in certain personal activities, but whether they actually are able to engage in personal activities during on-call duty. To go unpaid, the employee must be free to engage in some personal pursuits, but the law does not require that he or she have substantially the same flexibility or freedom as he or she would if not on-call; otherwise, all or almost all on-call time would be working time, a proposition that case law and administrative guidelines clearly reject.

As a practical matter, employers that use on-call employees may wish to do the following:

  • Audit any positions they have requiring on-call duty to ensure proper pay practices.
  • Review the extent to which on-call time restricts the employees’ activities and whether the time spent on-call is primarily for the benefit of the employer.
  • Pay careful attention to the activities the employees indicate they do participate in while oncall, keeping in mind that employees do not need to have the same level of flexibility or freedom as they do when not on-call.