Hi, I appreciate your response, however can you clarify "on Call" duty also? If an employee is responsible to be "on Call" for 24 hours, but only needs to work maybe a total of 8 hours within the 24 hours, how is this clarified to be legit?
A: On Call/waiting time is controlled by a two-factor test: (1) the parties' agreement; and (2) the degree to which the employee is free to engage in personal activities. Gomez v. Lincare, Inc. (2009) 173 CA4th 508, 522.
The difficulty with an on-call worker usually arises where the employee is required to remain close to the employment site, but does not actually reside in the worksite. There is no bright-line rule here, but where an off-site employee must report within less than 30 minutes from a call, it is likely that the employee is not free to engage in personal activities, and so he/she must be paid as if actually working. Id.
, at 523; IWC Order #15-2001 § 3(C).
Also, what if the employee is a "live in", ie. we allow our housekeeper to live at our house, but expect she is to perform duties, when we need her to. ( We only live at this house 1 or 2 nights a week, plus we travel a lot and need her to watch our dog for 2 months at a time, so this is a tricky situation) I know this is a grey area, but want to be fair and understand state rules. Thank you for your help.
A: Where the employee is a "live-in," the primary rules are found in IWC Order #15-2001 § 3(A). Example: Employee is on a 12-hour free-time period, and receives a reporting call. If employee is required to report within less than 30 minutes, then the employee was not actually on free time, so all of the 12 hours is compensible. Regardless of the on-call rules, the employee must have at least 3 hours of unrestricted free time during the 12 hour free-time period.
The rules are admittedly complicated. Perhaps there is a software payroll application that would permit your employee to clock in and out and then automatically calculate the employee's pay. If not, then all you can do is carefully review IWC Order #15-2001 § 3, and when in doubt -- pay extra compensation.
The reason why these laws are so onerous is because too many times, household workers are undocumented aliens who are effectively enslaved into working for their employer around the clock, for less than minimum wage, without any benefits (unemployment ins.; State Disability Insurance, etc.). The DLSE takes and vigorously prosecutes complaints from household workers, whether or not they have legal work status in the USA.
When in doubt, overpay your employee and provide additional free time. Also, log work time into some sort of timecard system, so that you can prove the employee's work and pay. If you do not do this, and the employee complains to DLSE, then the judge will inevitably give the employee's testimony greater weight, and you will lose -- because the law requires that you maintain accurate payroll records.
Hope this helps.