Mcle Self-study: Mendiola v. Cps Security Solutions, Inc.: Employee's Perspective

• Publication year: 2015
• Author: By Cathe L. Caraway-Howard and Miles E. Locker

MCLE Self-Study: Mendiola v. CPS Security Solutions, Inc.: Employee's Perspective

By Cathe L. Caraway-Howard and Miles E. Locker

Ms. Caraway-Howard is the founder of the Employee Rights Law Group in Playa Del Rey, and practices employment law throughout California primarily representing plaintiffs. Miles Locker's long career in wage and hour law and labor relations has included service as an attorney with the DLSE, the ALRB, and the PERB, and private practice spanning expert work, consulting, class action, and appellate litigation.

Mendiola v. CPS Security Solutions, Inc.¹ serves as yet another reminder that in the area of wage and hour law, the protections afforded by California's Industrial Welfare Commission (IWC) wage orders and, in particular, the determination of whether an employee must be compensated for "hours worked," cannot be undercut by less protective federal regulations adopted pursuant to the Fair Labor Standards Act (FLSA), absent convincing evidence of the IWC's intent to adopt the federal regulation. This simple proposition eluded the majority some twenty-five years ago in Monzon v. Schaefer Ambulance Service, Inc.,² when it decided that a federal regulation³ excluding "sleep time" from compensable hours worked under the FLSA prevailed over the more restrictive IWC wage order.⁴ The dissenting opinion in Monzon anticipated Mendiola with a sharp criticism of the majority's "convoluted reading" which "overlooks the well-settled, commonsense principle that federal interpretations are not controlling in any sense where, as here, the . . . IWC orders differ in language and intent from the federal statutes and regulations."⁵

Of course, the Monzon majority did not have the benefit of a series of later-decided California Supreme Court opinions which declined to incorporate less protective provisions of federal regulations into California's wage and hour law requirements: "Courts must give the IWC's wage orders independent effect in order to protect the commission's delegated authority to enforce the state's wage and hour laws and, as appropriate, to provide greater protection to workers than federal law affords."⁶ These cases could only be read as harbingers of the end of Monzon. But, surprisingly, Monzon was not only given new life, it was substantially expanded by Seymore v. Metson Marine, Inc.,⁷ which held that the regulation⁸ in Monzon is not limited to ambulance drivers and attendants, but applies to all employees who work 24-hour shifts, including those for whom the applicable IWC wage order fails to provide for any type of agreement to exclude sleep time from otherwise compensable hours worked. Seymore reached this conclusion without any discussion of how to reconcile Monzon with Martinez, Morillion, and Ramirez.

That employees in Seymore, like Monzon, were covered by IWC Wage Order 9 allowed attorneys representing workers with sleep time claims covered by any other IWC wage order to argue that Seymore should only be applied to Order 9 cases, and that lower courts were not bound to incorporate part 785.22 when interpreting any other wage order. Plaintiffs sought review on whether part 785.22 applied to an IWC wage order in the absence of evidence that IWC intended to allow for such application. The employer sought review on whether its employees' sleep time constituted "hours worked" under the wage order. The court granted both petitions for review.

CPS Security Solutions argued that the sleep time did not constitute "hours worked" because it was uncontrolled and, therefore, non-compensable, standby time. The facts of the case belied this argument. First, during the eight hours designated as sleep time, CPS security guards were required to remain on the construction worksite and were required to immediately respond, in uniform, to calls from the CPS dispatcher, or to motion-activated alarms or any other disturbances. CPS imposed substantial restrictions on the guards' sleep time, prohibiting them from having any visitors (including a spouse or a child), having a pet, and consuming alcohol. In order to leave the worksite during sleep-time hours, the security guard had to first request permission from the dispatcher, tell the dispatcher where he or she intended to go, then wait for the dispatcher...