The California Supreme Court in the matter of Mendiola v. CPS Security Solutions, Inc., has reversed the California Court of Appeals, ruling that employees on 24 hour shifts must be paid for time sleeping.

Historical Perspective

Wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC (Industrial Welfare Commission). Wage Order 4 defines hours worked as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” In the Morillion case, the court held that an employee who is subject to an employer’s control does not have to be working during that time to be compensated . . . ”  and that it is “[t]he level of the employer’s control over its employees . . . is determinative” in resolving the issue. “When an employer directs, commands or restrains an employee from leaving the work place . . . and thus prevents the employee from using the time effectively for his or her own purposes, that employee remains subject to the employer’s control. According to [the definition of hours worked], that employee must be paid.” (Morillion).

Courts have identified various factors bearing on an employer’s control during on-call time: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on 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.

In the cases of Monzon v. Schaefer Ambulance Service and Seymore v. Metson Marine, the California Court of Appeals has ruled that employers and employees can agree to exclude time sleeping from “hours worked.” Monzon involved Wage Order 5 dealing with ambulance drivers and the court held that by implication 29 Code of Federal Regulations part 785.23 should be implied into the wage order.  Specifically, Part 785.23 provides, “an employee who resides on his employer’s premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.” The Monzon court decided that by agreement hours of sleep may be excluded from hours worked.  Subsequently, in Seymore, the California Court of Appeals ruled that sleep time may be excluded from “hours worked” for 24 hour shift employees who reside on their employer’s premises under any wage order.  That was the law until Mendiola v. CPS Security Solutions, Inc.

Mendiola v. CPS Security Solutions, Inc.

Mendiola involved security guards who on weekdays were on call after their 8 hour day to respond to problems at construction sites as needed over another 8 hour period and on weekends guards were on patrol for 16 hours and on-call for 8. By written agreement, an on-call guard was required to reside in a trailer provided by CPS. The trailers ranged from 150 to 200 square feet and had residential amenities including a bed, bathroom, kitchen, heating, and air conditioning. Only the assigned guard and maintenance staff had keys to these onsite trailers. Guards could keep personal items in the trailers and generally use on-call time as they chose. However, children, pets, and alcohol were not allowed, and adult visitors were permitted only with the approval of the CPS client. An on-call guard wanting to leave the worksite had to notify a dispatcher and indicate where he or she would be and for how long. If another employee was available for relief, the guard had to wait onsite until the reliever arrived.  If no relief was available guards had to remain on-site. Guards received no compensation for on-call time unless (1) an alarm or other circumstances required that they conduct an investigation or (2) they waited for, or had been denied, a reliever. Guards were paid for the actual time spent investigating disturbances. If three or more hours of investigation were required during on-call time, the guard was paid for the full eight hours.

The California Supreme Court ruled that it was error to imply the federal regulation into California wage orders.  California provides a higher level of protection to employees and that cannot be diminished by use of federal law.  The court stated that simply allowing employees to sleep does not wrestle control over that employee from the employer.  By analogy, an employee who is permitted to eat lunch while on duty is still required to be paid.  The Mendiola court ruled that it was improper on the part of the Seymore court to imply the existence of federal regulations in all California wage orders and as such excluding Wage Order 5, sleep time must be considered “hours worked” for purposes of all other employees working 24 hour shifts and residing on the employer’s premises.


  1. Employers in California who have 24 hour shift employees who reside on company premises should review their pay policies to ensure that sleep time is not excluded from hours worked.

  2. Review payroll practices to make sure they are in compliance with the law.

  3. Educate managers and supervisors.

We hope this information is valuable to you. Please do not hesitate to contact Holman HR with any questions you may have.