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Should I Be Paid for Standby Time? (California Law)

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

Whether an employer must pay an employee for standby time depends on whether the time is “controlled standby" or “uncontrolled standby." In simple terms, this means that if the employee cannot use his or her time for personal reasons, the time is controlled and considered time worked. However, as with most areas of the law, applying the rule to each situation requires analysis.

The California Division of Labor Standards Enforcement (DLSE) publishes an Enforcement Manual. The Manual explains controlled standby as follows: “If the employee’s time is so restricted that [he or she] cannot pursue personal activities and come and go as he [or she] pleases, the employer is considered to have direction and control of the employee." If the employer has direction and control, the time is compensable work time.

The DLSE uses the two-part test in the California Supreme Court case of Madera Police Officers Assn. v. City of Madera, 36 Cal.3d 403(1984) to decide whether standby time is compensable. Part One measures whether the restrictions on the employee are primarily directed toward fulfilling the employer’s requirements and policies. Part Two asks whether the employee is substantially restricted to the point where he or she cannot attend to private pursuits. It is this second part that requires the most analysis. The courts will review the overall effect of the employer’s restrictions on the employee, not whether the employee is restricted at one particular slice of time.

California law looks at the same factors as in the federal case of Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir.1994), including:

  • whether there are excessive geographical restrictions on employees’ movements;
  • whether the frequency of calls [to work or return to work] is unduly restrictive;– whether a required response time is unduly restrictive;
  • whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and
  • whether the extent of personal activities engaged in during on-call time.

DLSE Opinion Letter 1998.12.28.

Another way of describing this is to consider if the employee was “engaged to wait" or “waited to be engaged." Did the employer hire the employee for the purpose (or partial purpose) of waiting to work? Or is the employee waiting for the opportunity to work? This is highly dependent on the specific facts. Owens v. Local No. 169, Ass'n of W. Pulp and Paper Workers, 971 F.2d 347, 354 (9th Cir.1992)

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