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KM&M Client Prevails In Multi-Plaintiff Wage Claim under California's Labor Code Private Attorneys General Act

August 5, 2005

KM&M has successfully defended a not-for-profit public benefit corporation serving victims of domestic violence and rape against a wage claim filed by three former employees under California's Labor Code Private Attorneys General Act. The employees sought back wages and penalties in excess of $186,500 for what they argued was uncompensated "stand-by time" waiting for calls from a rape and domestic violence crisis line that operated twenty-four hours a day. The Division of Labor Standards Enforcement rejected the employees' claims for stand-by time entirely, a decisive victory for KM&M's client.

The plaintiffs were all domestic violence/sexual assault counselors who staffed a crisis line that operated twenty-four hours a day. Although community volunteers worked on the crisis line as well, the plaintiffs contended that they were "on-call" from 5 PM to 8 AM every weeknight and twenty-four hours per day on the weekend for every day they were scheduled to cover the crisis line. The plaintiffs sought overtime wages for all of these hours at the applicable premium rate (time-and-a-half or double-time), regardless of whether they actually answered a call from the crisis line, and regardless of the fact that they did not record on their time sheets all of the time claimed.

The primary legal issue was whether the plaintiffs worked "controlled" stand-by, which is compensable work, or "uncontrolled" stand-by, which is not compensable unless the employee actually performs work. Whether stand-by time is controlled or uncontrolled depends whether the employee can effectively use the time for his or her own purposes while on stand-by. A variety of factors are considered in making such a determination, including whether there are excessive geographic restrictions on the employee's movements; whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and whether and to what extent the employee engages in personal activities during on-call periods.

After a full day of testimony and argument, the Deputy Labor Commissioner issued orders in all three plaintiffs' cases finding that they had failed to show that they were working compensable "controlled" stand-by. The Deputy Labor Commissioner also refused to award the "waiting time penalties" sought by the plaintiffs. The plaintiffs did recover nominal amounts of overtime wages (a total of $2,100, including interest) for overtime hours the plaintiffs worked but failed to properly record on their time sheets. This recovery represented a mere 1% of the amount initially sought by the plaintiffs.

As previously noted, this case was brought under the California Labor Code Private Attorneys General Act, Labor Code section 2699 et seq., which was enacted with great fanfare in 2004. It allows employees to pursue representative actions against their employers on their own behalf and on behalf of others for violations of most provisions of the Labor Code, including wage and hour violations, misclassification of employees as exempt from overtime, and Cal/OSHA violations. The state Labor and Workforce Development Agency (LWDA) must first be given the opportunity to investigate such claims, but thereafter an employee is free to pursue a civil action. Prevailing plaintiffs in Labor Code Private Attorneys General actions are entitled to substantial penalties, attorneys' fees, and costs, but are required to share any award with the LWDA, retaining actual wages owed and up to 25% of any penalties awarded. The remaining 75% of penalties are paid to the LWDA and are to be used for enforcement purposes.

Please contact any of the attorneys in our San Francisco or Los Angeles offices for compliance assistance with California wage and hour law.