California law regulating what hourly workers must be paid for differs from the Federal Fair Labor Standards Act (FSLA). This is an example of how California law is more favorable than Federal Law which provides the minimum working protections possible for workers.
In California, non-exempt employees who work twenty four hours or more a day must be paid for time sleeping unless a series of circumstances are met.
1) The employer must allow the employee the ability to have uninterrupted sleep for more than five hours. If the employee is free to do what they want during these five hours and they choose not to sleep, the employer does not have to pay them provided the last two criteria are met;
2) The time excluded for uninterrupted sleep cannot be more than eight hours;
3) The employer must furnish adequate sleeping facilities. A room with a bed might constitute adequate sleep facilities, and a motel or hotel would. More interesting questions would be whether a weather proof tent would constitute adequate facilities, and it probably would if the job was somewhere away from normally constructed shelter, but probably not if it was a security officer working at a hospital.
Presuming there is a twenty four or more hour consecutive shift, and all of the above criteria are met, the next question is whether uninterrupted meal breaks are excluded from determining that there is a twenty four hour shift. For instance, if the employee took two half hour, uninterrupted meal breaks only twenty three hours would have been worked. Thus, the rule about being paid to sleep really involves twenty five hour consecutive shifts if the employer has correctly paid the meal breaks.
If the employee’s schedule is less than twenty four hours, the employee is not entitled to be paid if they sleep. Questions would exist as to how many uninterrupted meal breaks the employee is entitled to, and how much they should be paid in overtime and double time pay.
What is stated above is the general law. Complications arise if the employee is required to stay on the premises when they sleep. Some positions are exempt from the employee being paid to sleep if an employee is required to live on premises, or stay in the employer’s home. Other positions require written agreements for the employer to avoid paying the employee for all hours spent on premises.
There are too many scenarios, exemptions, and industries to write about so it is best to consult with anunpaid wages attorney who is highly skilled and experienced in wage and hour cases. These are not issues a general practitioner would know, and they are not even issues many labor lawyers know off the top of their head. These issues are based upon a variety of different wage orders, California Codes of Regulation, California Statutes and Federal Statutes, Federal cases, and opinion letters. Lawyers familiar with these issues would need a proper law library to answer these questions. This type of information is not available all in one place, and requires the synthesis of information by somebody skilled in this area.
Some of the laws generally governing whether employers have to pay for sleep time are 29 C.F.R. 785.21; 29 C.F.R. 785.22(a); Division of Labor Standards Enforcement Policy and Interpretations Manual (rev. 2009); Wage and Hour Opinion Letter No. 2102 C.C.H. Section 32,944 (1999); Wage and Hour Opinions Letters No. 1929, C.C.H. 32,759 (1998); No. 1559,C .C.H. 31,362 (1981); Aguilar v. Association For Retarded Citizens, 234 Cal.App.3d 21 (1991); Monzon v. Schaefer Ambulance, 224 Cal.App.3d 16 (1990); Service Employees Local 102 v. County of San Diego, 35 F.3d 483 (9th Cir. 1994); General Electric v. Porter, 208 F.2d 805 (9th Cir. 1953); Johnson v. City of Columbia, 949 F.2d 127 (4th Cir. 1991); Hultgren v. County of Lancaster, 913 F.2d 498 (8th Cir. 1990); Van Dyke v. Bluefrield Gas Co., 210 F.2d 620 (4th Cir. 1954); Beaston v. Scotland, 693 F.Supp. 234 (MD Pa. 1988).
Employees may estimate the number of hours they worked, and were not paid, if the employer has inadequate payroll records. In every jury trial, the jury is given an instruction on what the law is. If theemployer has failed to keep accurate records of the hours that the employee works, or does not bring them to trial, the following jury instruction is read:
State law requires California employers to keep payroll records showing the hours worked by and wages paid to employees. If Defendants have not presented accurate information about the hours worked by the Plaintiff then your decision may be based upon a reasonable estimate of the hours worked, CACI 2703.
Hernandez v. Mendoza, 199 Cal.App.3d 721, 727-728, 245 Cal.Rptr. 36 (1988) is in accord with federal precedent stating and states:
Although the employee has the burden of proving that he performed work for which he was not compensated, public policy prohibits making that burden an impossible hurdle for the employee. In such situations the employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. if the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.
Do not be afraid to file a lawsuit for unpaid wages, including overtime, if you or your employer do not have completely accurate records of the times you worked such as through time cards. However, do not exaggerate your claims of hours worked.
If you have questions about whether you should be paid when you work a twenty four hour, or shorter shift, please feel free to contact us at 1-877-525-0700.