Unfortunately, many employees are not paid for all hours worked. Under California law, compensable work time (i.e., time that your employer has to pay you for) is that time which “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.” (8 Cal Code Regs §11010(2)(G)). As a result, compensable work time is not only that authorized by an employer, it is work time to which an employer acquiesces or allows to occur. (Id. ) An employer that does not want to compensate employees for certain work activities must specifically direct employees not to perform those activities and ensure that employees do not perform those activities. (29 CFR §785.13.)

Compensable work may occur away or at the employer’s place of business. (Karr v. City of Beaumont (ED Tex 1997) 950 F Supp 1317, 1322 [canine officer’s care of dog and maintenance of police vehicles at home considered compensable work time].) Work performed at home by employees (e.g., time spent answering e-mail before clocking in or after clocking out) is compensable work time. (29 CFR §785.12.) Employers have a reasonable duty to ascertain whether an employee is working overtime and may not unreasonably expect an employee to perform assigned duties without working overtime. (2002 Division of Labor Standards Enforcement Policies and Interpretations Manual §§47.6.2–47.6.4 (rev 2009).) Other compensable time can include work meetings, training time, time spent putting on and taking off work clothes and gear, time spent working during non-compliant meal periods and certain travel time that is not part of the employee’s normal commute.

Unproductive time at work is compensable in California. For example, sleeping while on duty during a work shift is compensable in California. (Mendiola v. CPS Sec. Solutions, Inc. (2015) 60 C4th 833 [in which the California Supreme Court held that employees working 24-hour shifts have to be paid for all 24 hours without carving out eight hours of sleeping time].) This rule applies to employees like caregivers and security guards who may sleep during a 24-hour shift, but are on duty during that time, may be woken up if necessary to handle an emergency, and must be paid for this time. (Id.)

Similarly, piece rate and commission employees must be paid for unproductive time that is not spent performing tasks that the piece rate or commission scheme is specifically designed to compensate. For example, an employer cannot argue that time spent performing nondriving tasks are compensated by a piece-rate pay plan when the piece rate is based on driving activities such as the number of miles driven. (Quezada v Con-Way Freight, Inc. (ND Cal, July 11, 2012, No. C 09–03670 JW) 2012 US Dist Lexis 98639; Cardenas v. McLane Foodservices, Inc. (CD Cal 2011) 796 F Supp 2d 1246 [“Even if communicated to its employees that this piece-rate formula was intended to compensate for pre- and post-shift duties, the fact that it did not separately compensate for those duties violates California law.”]; Bluford v Safeway Inc. (2013) 216 CA4th 864 [employer’s compensation system did not comply with California law because it did not separately compensate drivers for rest periods].) Each duty covered by piece rate pay must be separately compensated. (Id.) Labor Code § 226.2 requires compensation for rest and recovery periods and for nonproductive time that is separate from piece-rate compensation.

If you are an employee who has not been paid for all hours worked, please contact Lebe Law for a free consultation.