Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Upcoming Talks

May 29, Irwindale "The Impact of the New Minimum Wage on All Employers" Click here for more information.

 

July 9, City of Industry “HR4U 101 Full-day Workshop" Click here for more information.

 

July 17, West Covina "Critical Human Resources Issues for Business Owners" Click here for more information.

 

Security Guards’ Weekend On-Call Time was Non-Compensable Sleep Time

Security guards who worked 24-hour weekend shifts were not entitled to compensation for eight hours of sleep time, the California Court of Appeal has ruled. The Court found that excluding eight hours of sleeping time during weekend shifts from the guards’ compensation was proper under California law. However, the Court found the guards’ weekday nightly on-call hours were compensable.

 

CPS Security Solutions, Inc. provides security services at construction sites. Services provided include “trailer guards,” who spend the night at the jobsite in residential trailers. Trailer guards investigate alarms and other suspicious circumstances; their presence helps to prevent vandalism and theft. Tim Mendiola worked as a trailer guard for CPS. 

 

When he was hired by CPS, Mendiola signed an “on-call” agreement outlining his hours of work. The agreement designated eight hours per weekday, from 9:00 p.m. to 5:00 a.m., as “on-call” hours. On weekends, trailer guards worked 24-hour shifts; 16 hours of active patrol, from 5:00 a.m. to 9:00 p.m., and eight hours of on-call time, from 9:00 p.m. to 5:00 a.m. CPS compensated the guards for on-call time spent responding to alarms and conducting investigations. However, if a guard worked for at least three hours during the on-call period, the trailer guard would be paid for the entire eight hours.

 

The agreement also provided that, if a trailer guard wanted to leave the jobsite, he or she must notify a dispatcher, provide information on his or her whereabouts, carry a pager or cell phone and respond to any calls from CPS, and stay within a 30-minute radius of the jobsite. Guards could engage in personal activities while on-call in the trailers; however, children, pets, and alcohol were not permitted, and adult visitors were permitted only if authorized by the clients.

Mendiola, on behalf of himself and others, sued CPS for alleged unpaid wages and overtime, claiming that the employer’s on-call policy violated the California Wage Orders.

 

Under California law, “hours worked” is defined 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.” Whether on-call time constitutes “hours worked” depends on the level of the employer’s control over its employees.

 

In addition, when an employee works a 24-hour shift, the employer and employee may agree to exclude up to eight hours for sleep time, if the employer provides adequate sleeping facilities and the employee has the opportunity to get at least five hours of uninterrupted sleep.

 

The Court found the guards’ weekday on-call time was compensable because CPS exercised significant control over their activities. The guards were required to live onsite, expected to respond promptly to alarms, and limited in their ability to leave the premises. In addition, the Court found they did “not enjoy the normal freedoms of a typical off-duty worker, as they are forbidden to have children, pets or alcohol in the trailers and cannot entertain or visit with adult friends or family without special permission.”

 

However, the Court agreed with CPS that the weekend on-call time constituted sleep time that was not compensable. It noted that most employees would be sleeping for a similar period every day, whether on duty or not, and the compensation provided for the other 16 hours, which included considerable overtime, ensured that the guards receive an adequate wage. The Court noted that, although the on-call agreement did not specifically reference “sleep time,” the designated on-call period occurred at night, when most people were likely to be asleep. The agreement also provided that the guards would be compensated for all time their sleep was interrupted due to alarms or investigations. The Court also found significant that on any night a guard did not receive at least five hours of uninterrupted free time, the entire eight hours would be compensated. Accordingly, the Court reversed the order requiring CPS to pay for the weekend on-call time.

 

Employers should evaluate their on-call practices for California employees in light of this decision. In addition, employers should consider periodic audits of their payroll records to ensure employees are properly compensated in compliance with the law.

 

$100,000 Consent Decree Ends Disabilities Lawsuit Against Staffing Agency

Staffmark Investment LLC, one of the nation's largest commercial staffing companies, will pay $100,000 under a consent decree which ended a disability discrimination lawsuit brought by the EEOC.  The EEOC alleged that Staffmark violated the Americans with Disabilities Act (ADA) when it terminated a woman with a prosthetic leg because of her disability. 

 

Staffmark assigned Dorothy Shanks to work at an Ozburn-Hessey Logistics (OHL) facility located in Romeoville, Ill., to inspect Sony televisions on a temporary basis.  On Shanks's second day on the job, according to the EEOC's complaint, a Staffmark employee told her that she was being removed from the work site because they did not want anyone to bump into her or knock her down.  The EEOC alleged that the employee told Shanks that Staffmark would find her another placement, but she was never sent on another assignment following her termination from the OHL facility.  

 

The consent decree settles the suit against Staffmark and provides $100,000 in monetary relief to the victim.  The decree also requires Staffmark to report all employee complaints of disability discrimination at two Chicago-area facilities to the EEOC for the next two years.  Staffmark must also train all its supervisory and managerial employees at those facilities on the prevention and eradication of disability discrimination and adopt new policies regarding anti-disability discrimination.  The decree also specifically provides that Staffmark cannot require Shanks to keep the facts underlying the case confidential, waive her rights to file charges with a government agency, or refrain from reapplying for work with Staffmark or any of its clients.

 

The ADA makes it illegal to fire a disabled employee due to baseless fears that the individual may injure herself or others. 

 

Factoids

• 49% of workers have a company sponsored retirement plan and only 40% of employees participated in them

Most important benefits (Aetna survey)

• Flexible work schedules                                                            62%
• Reduced health insurance premiums linked to wellness         59%

Most negative impact on employee morale (Accountemps)

• Lack of honest, open communication                      33%
• Micromanaging employees                                      18%
• Failure to recognize employee achievements         15%

 

Quotes

“If you can't describe what you are doing as a process, you don't know what you're doing.”

~W. Edwards Deming~