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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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My husband is a tow truck driver in California. He is paid

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My husband is a tow truck driver in California. He is paid strictly commission (without a base pay so 'no tow, no pay'). He is scheduled on-call 120 hours per week. During his on-call time he has a response time that has to be met (15-30 minutes) for ALL calls he is dispatched to. Should he take care of any personal business, he must take his tow truck with him and must cease his business in the event he is dispatched in order to meet his response time. Of what I have found online, his compensation should be, at minimum, equal to CA minimum wage plus overtime for his entire 120 hours on-call since he is 'under significant employer control' during his 120 hours. I can't find anything regarding sleep-time requirements though. Some nights (especially in the summer months) he will get a call every 2-3 hours, or get a call in the middle of the night requiring him to immediately drive 4-6 hours round trip. So, A) Am I correct on my compensation interpretation?, and B) Where would I find sleep-time requirements?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.

So, A) Am I correct on my compensation interpretation?, and B) Where would I find sleep-time requirements?

Hello,

In the recent case of Mendiola v. CPS SECURITY SOLUTIONS, INC., 217 Cal.App.4th 851 (Cal. App. 4th 2013), the California 4th District Court of Appeals made a decision which closely aligns to the facts you describe relating to your spouse. More important than the decision itself, is the discussion of the various issues surrounding on-call and sleep time:

  • In resolving the degree to which employees are able to engage in private pursuits during on-call time, courts generally apply seven factors:  “ ‘(1) whether there was an on-premises living requirement;  (2) whether there were excessive geographical restrictions on  [the] employee's movements;  (3) whether the frequency of calls was unduly restrictive;  (4) whether a fixed time limit for response was unduly restrictive;  (5) whether the on-call employee could easily trade on-call responsibilities;  (6) whether use of a pager could ease restrictions;  and (7) whether the employee had actually engaged in personal activities during call-in time.’

  • The court granted the request and entered an order enjoining CPS from (1) “continuing to violate [Wage Order No. 4], ․ and Labor Code § 1194 through CPS's application of an unlawful ‘On-call’ policy for Trailer Guards, which does not compensate for all time spent by the Trailer Guards at the worksites during ‘On-call’ time, which is generally between 9:00 p.m. and 5:00 a.m., and is specified in each ‘On-call’ agreement between the employer and each Trailer Guard” and (2) “failing to pay California Trailer Guards for all hours worked during ‘On Call’ time.

 

In sum, the sort of on-call requirements of your husband's job almost certainly require that he be paid minimum wage while waiting for an assignment. However, it's unlikely that the sleep requirements would require similar compensation, unless your husband is sleeping at his employer's location, or in his truck.

 

What is potentially important, is that if your husband is being required to work more than 6 days in 7, then the minimum wage may be increased on day 7 to time and a half -- and unless he is given a day off for each seventh day worked during any calendar month, then he would be entitled to damages for the violation including the unpaid overtime, liquidated damages (twice the minimum wage), plus $50 for the first seventh day violation, and $100 for every subsequent violation.

 

Concerning the relevant general laws, IWC Order #9-2001 applies to tow drivers.

 

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

 

 

Customer: replied 1 year ago.

His 120 hours on-call is like this: 96 hours on-call, 48 hours off, 96 hours on-call. So, in a 7 day period he is on-call for a total of 120 hours. He is not required to sleep at the yard and his employer does not provide sleeping facilities anyway. Based on IWC Order #9, I calculate his minimum pay as follows (using the alternative work week): $8/hour X 40 hours=$320, $12/hour (time and a half) X 20 hours (hours on-call that exceed 8 hours but up to 12 hours)=$240, and $16/hour (double time) X 60 hours (remaining hours that exceed 12 hours) =$960. A total of $1,520 for a 7 day period. I am including ALL of the 120 hours spent on-call because he is under control of the employer at all hours due to having to meet response times. So, are my calculations correct to NOT exclude 'sleep time'; a) because no sleeping facilities are provided, and b) because he remains under employer control because of his expected response times?


 


 

Expert:  socrateaser replied 1 year ago.
If your husband is sleeping at home, but his response time is 15-30 minutes, i.e., he must actually arrive at the yard or traffic incident site within that time period, then it can probably be argued successfully that your husband is not "on call," but rather is subject to the employer's control and entitled to pay throughout the work period, regardless of what else your husband is doing.

As far as the actual "numbers" in your calculation are concerned, I will have to defer to an accountant for that. I don't feel comfortable doing the math. The law requires 1.5 X regular wages for hours over 8 in any day, over 40 hours in any week, and on day 7, if required. Premium time (2X) is owed for hours worked over 12 during any day. I can see that you know this -- I'm just reiterating it to be thorough.

If you file a wage claim with DLSE, the investigator will try to calculate the unpaid wages for you, and then contact the employer and try to negotiate payment without filing an administrative action against the employer. If you hire a lawyer, and threaten legal action, the lawyer will eventually need to hire an accountant to calculate the total damages, plus waiting time penalties, overtime, liquidated damages and any additional minimum wages owed.

You can obtain unpaid wages for up to 3 years prior to the date that you sue or file a DLSE complaint. The amount could be quite large, especially if liquidated damages are added to the unpaid overtime -- because that would double the amount owed.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34860
Experience: Retired (mostly)
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