Labor and Employment Law

Ca. Labor & Emp't Rev. July 2015, Volume 29, No. 4

Mendiola v. CPS Security Solutions, Inc.: Employer’s Perspective

By Howard M. Knee and Jim Newman

Howard M. Knee, a partner of Blank Rome, has more than 40 years of labor and employment law experience, in both trial and appellate court work and advising employers in all aspects of labor and employment relations. Jim Newman has been representing employers in California for over 30 years. He is the General Counsel of CPS Security Solutions, Inc. in Gardena and was previously Senior Counsel ot Pacific Bell/SBC Communications, Inc. in San Francisco.

In Mendiola v. CPS Security Solutions, Inc.,1 the California Supreme Court held that, except for ambulance drivers employed in the transportation industry under Wage Order No. 9, California law does not permit agreements to exclude sleep time from compensable hours worked, even when the employee resides on the premises. The court held that all hours each night that the plaintiff security guards spent sleeping or engaged in personal activities in private trailer homes on the work site must be paid at overtime or double time rates. The court reached its decision despite the fact that employees chose to work and reside in trailer homes and could have chosen a regular hourly guard position for which all hours would have been paid. In the court’s view, it was of no import that employees could leave the premises during the on-call hours, so long as they told the employer, and that they were paid if a reliever could not be arranged and they were ordered to stay. The court gave short shrift to the employer’s argument that the sleep time plan had explicitly been approved by the Labor Commissioner and that the employer relied on two earlier courts of appeal decisions, including one that had not been disturbed for 25 years.

The employer in Mendiola was a security guard company that provided guards at construction sites. In addition to eight hours of sleep time, guards patrolled the premises for eight hours on weekdays and 16 hours on weekends, such that they remained at the trailer site for 16 hours and 24 hours, respectively. The guards were expected to respond to any interruptions or alarms and were paid (at overtime rates) for all time they spent responding. A guard could request to leave the premises and was paid from the time of the request until a relief guard arrived or, if a relief guard was unavailable, for the remainder of their sleep time. During sleep time, guards were free to sleep, surf the Internet, or engage in other personal activities.

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