Required to be there without pay California

[jvisaac]

My daughter is a swim instructor and has scheduled lessons with gaps between lessons. Here employer requires her to be there and she is not paid for the time between lessons. She is only being paid for the instruction time. If a client cancels then she is not being paid for the missed lesson but she is still required to be at the pool. I feel she should be paid for all this time as she is an employee and not a contractor.

[ElleMD]

How much time are we talking about? Is she performing work during the time she is waiting or if a lesson is cancelled? Is there a reason she can notleave if her lessons are cancelled for the day?

[jvisaac]

She is scheduled to be there from 10:30 - 5:00 today. Her lessons are scheduled throughout this 6.5 hour day. She may have a lesson that ends at 11:00 and the next lesson isn't scheduled until 11:20. She is not getting paid for this 20 minutes and is told she has to stay at the pool. Also, if the 11:20 appointment is canceled and her next appointment is at 11:40 she will not get paid for a total of 40 minutes.

[ElleMD]

Are these break meal breaks? If so, she does not need to be paid for breaks longer than 20 minutes. If she is performing no work but merely needs to be present because she has another appointment scheduled shortly after, she need not be paid. Now if she is expected to perform work during that time, such as creating lesson plans, preparing equipment, serving as life guard, paperwork or other duties directed by the employer, then she should be paid for that time. If she then just gets a longer duty free lunch, she does not.

[jvisaac]

First and foremost, thank you for your quick replies. This is extremely helpful. I don't know if these are being considered meal breaks or not. For the sake of argument let's say it is. Does it matter that she has multiple meal breaks per day? Also, should she be required to stay at the pool with no assigned duties during these breaks?

[ElleMD]

She should be given a meal period of at least 30 minutes. Is this happening? I don't believe CA requires employers to pay for time not worked just because the employee must remain on the premises. If she is not performing work and is free to read, listen to music, daydream or eat, she need not be paid.

[DAW]

Just to be very sure, is the worker in question legally an employee? Are taxes being withheld from the payment? Is a W-2 received at year end?

Assuming that the worker is an employee, here are the CA lunch rules.
http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

Assuming that the worker is an employee, then here are the federal hours worked rules.
http://www.dol.gov/whd/regs/compliance/whdfs22.pdf

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."

[Worriedspouse]

In California, if she is under the control of the employer she must be paid. If she is required to remain on site, she must be paid even if that time includes a meal break where she is relieved of all duties. If you are required to remain at the pool area, employer must provide a place for the employee to eat, a means to keep food cold and to heat food. If she is not provided a meal break where she is relieved of all duties after 5 hours, she is owed 1 hours pay.

[Worriedspouse]

From the DLSE manual: 46.1.1 The DLSE Interpretation Of Hours Worked which provides that: “[U]nder
California law it is only necessary that the worker be subject to the ‘control of the
employer’ in order to be entitled to compensation” was found by the California Supreme
Court to “be consistent with [the Court’s] independent analysis of hours
worked.” Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 583 [citing to DLSE O.L.
1993.03.31].

[RRPayroll]

Not even under the more stringent California laws, but even under federal this is a violation (if she is an employee and not an IC). If you are required to be on the premises and are not allowed to leave, that counts as "permitted or suffered to work" regardless of whether or not a task is being done.