Filed 1/8/15




       IN THE SUPREME COURT OF CALIFORNIA


TIM MENDIOLA et al.,                    )
                                        )
           Plaintiffs, Cross-defendants )
           and Respondents,             )
                                        )                          S212704
           v.                           )
                                        )                    Ct.App. 2/4 B240519
CPS SECURITY SOLUTIONS, INC., et al., )
                                        )                    (Los Angeles County
           Defendants,                  )                  Super. Ct. No. BC388956)
           Cross-complainants           )
           and Appellants.              )
____________________________________)
                                        )
FLORIANO ACOSTA et al.,                 )
                                        )
           Plaintiffs, Cross-defendants )
           and Respondents,             )
                                        )
           v.                           )
                                        )
CPS SECURITY SOLUTIONS, INC., et al., )                      (Los Angeles County
                                        )                  Super. Ct. No. BC391669)
           Defendants,                  )
           Cross-complainants           )
           and Appellants.              )
____________________________________)


        Here we hold that, under the California wage order covering security
guards, these plaintiffs are entitled to compensation for all on-call hours spent at
their assigned worksites under their employer‟s control.



                                          1
                                 I. BACKGROUND
       The relevant facts are not in dispute.1 As applicable here,2 CPS employed
on-call guards3 to provide security at construction worksites. Part of each guard‟s
day was spent on active patrol. Each evening, guards were required to be on call
at the worksite and to respond to disturbances should the need arise.
       More specifically, a guard‟s obligations differed depending on the day of
the week. On weekdays, each guard was on patrol for eight hours, on call for
eight hours, and off duty for eight hours. On weekends, each guard was on patrol
for 16 hours and on call for eight hours.
       By written agreement, an on-call guard was required to reside in a trailer
provided by CPS. The trailers ranged from 150 to 200 square feet and had
residential amenities including a bed, bathroom, kitchen, heating, and air
conditioning. Only the assigned guard and maintenance staff had keys to these
onsite trailers. Guards could keep personal items in the trailers and generally use
on-call time as they chose. However, children, pets, and alcohol were not allowed,
and adult visitors were permitted only with the approval of the CPS client.
       An on-call guard wanting to leave the worksite had to notify a dispatcher
and indicate where he or she would be and for how long. If another employee was
available for relief, the guard had to wait onsite until the reliever arrived.4 If no


1     The facts are taken from the Court of Appeal‟s opinion and the joint
statement of undisputed facts.
2      Defendants, CPS Security Solutions, Inc., CPS Construction Protection
Security Plus, Inc., and Construction Protective Services, Inc., are referred to as
“CPS.”
3     CPS also employed guards who only worked shifts with no on-call
responsibilities. This case involves only on-call guards.
4      Relievers were paid for filling in.



                                             2
reliever was available, the guard had to remain onsite, even in the case of a
personal emergency. If relieved, a guard had to be accessible by pager or radio
phone and to stay close enough to the site to return within 30 minutes.
       Guards were compensated as follows. They were paid hourly for time
spent patrolling the worksite. They received no compensation for on-call time
unless (1) an alarm or other circumstances required that they conduct an
investigation or (2) they waited for, or had been denied, a reliever. Guards were
paid for the actual time spent investigating disturbances. If three or more hours of
investigation were required during on-call time, the guard was paid for the full
eight hours.
       Two class action lawsuits were filed in 2008 by CPS guards. The
complaints alleged, inter alia, that CPS‟s on-call compensation policy violated
minimum wage and overtime obligations imposed by the applicable Industrial
Welfare Commission (IWC) wage order and Labor Code statutes.5 The trial court
consolidated the cases and certified the class. Both sides sought declaratory relief
as to the lawfulness of CPS‟s on-call compensation policy. The parties filed cross-
motions for summary adjudication of the declaratory relief claims.
       The trial court granted plaintiffs‟ motion, concluding that CPS‟s
compensation policy violated Wage Order 4. Citing the extent of CPS‟s control
during on-call hours and the fact that the guards‟ presence on worksites primarily
benefitted CPS, the court concluded that the on-call hours constituted
compensable “hours worked” within the meaning of the wage order. CPS sought


5        The parties stipulated that IWC wage order No. 4-2001 (Cal. Code Regs.,
tit. 8, § 11040 (Wage Order 4)), which applies to all persons employed in
professional, technical, clerical, mechanical, and similar occupations, governs
here. (Id., subd. 2(O) [listing “guards” as included occupation].)



                                          3
review. The Court of Appeal affirmed in part and reversed in part. Both parties
petitioned for review.
       We conclude that plaintiffs‟ on-call hours constituted compensable hours
worked and, further, that CPS could not exclude “sleep time” from plaintiffs‟ 24-
hour shifts under Monzon v. Schaefer Ambulance Service, Inc. (1990) 224
Cal.App.3d 16 (Monzon) and Seymore v. Metson Marine, Inc. (2011) 194
Cal.App.4th 361 (Seymore).
                                 II. DISCUSSION
       We have explained that “wage and hour claims are today governed by two
complementary and occasionally overlapping sources of authority: the provisions
of the Labor Code, enacted by the Legislature, and a series of 18 wage orders,
adopted by the IWC.” (Brinker Restaurant Corp. v. Superior Court (2012) 53
Cal.4th 1004, 1026 (Brinker).) The IWC, a state agency, was empowered to issue
wage orders, which are legislative regulations specifying minimum requirements
with respect to wages, hours, and working conditions.6 (Brinker, at pp. 1026-
1027; see Martinez v. Combs (2010) 49 Cal.4th 35, 52-57 (Martinez).) Of the 18
wage orders in effect today, “16 cover[] specific industries and occupations, one
cover[s] all employees not covered by an industry or occupation order, and a
general minimum wage order amend[s] all others to conform to the amount of the
minimum wage currently set by statute.” (Martinez, at p. 57, fns. omitted.) The
number of wage orders, and their internal variations, reflects the reality that
differing aspects of work in differing industries may call for different kinds of
regulation.

6      The Legislature defunded the IWC in 2004, but its wage orders remain in
effect. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102,
fn. 4 (Murphy); Lab. Code, § 1182.13, subd. (b).)



                                          4
       Wage Order 4 requires that employers “pay to each employee . . . not less
than the applicable minimum wage for all hours worked in the payroll period
. . . .” (Wage Order 4, subd. 4(B), italics added.) It also requires that employees
be paid one and one-half times their regular rate of pay for “all hours worked over
40 hours in the workweek” (id., subd. 3(A)(1), italics added) and for “all hours
worked in excess of eight (8) hours . . . in any workday” (id., subd. 3(A)(1)(a),
italics added).7 The resolution of this case turns, in part, on whether the time spent
on call constituted hours worked within the meaning of the wage order.
       Wage Order 4 defines hours worked 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.”8 (Wage Order 4,
subd. 2(K).) In Morillion, we explained that “the two phrases — „time during

7        Wage Order 4 also requires that employees be paid one and one-half times
their regular rate of pay “for the first eight (8) hours worked on the seventh (7th)
consecutive day of work in a workweek” (id., subd. 3(A)(1)(a)) and “[d]ouble the
. . . regular rate of pay for all hours worked in excess of 12 hours in any workday
and for all hours worked in excess of eight (8) hours on the seventh (7th)
consecutive day of work in a workweek” (id., subd. 3(A)(1)(b)).
8        All industry-specific wage orders contain the same definition of hours
worked except Wage Order 4 and IWC wage order No. 5-2001 (Cal. Code Regs.,
tit. 8, § 11050 (Wage Order 5)), both of which include additional language.
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 581 (Morillion).) Wage
Order 4‟s definition contains a second sentence: “Within the health care industry,
the term „hours worked‟ means the time during which an employee is suffered or
permitted to work for the employer, whether or not required to do so, as
interpreted in accordance with the provisions of the [federal] Fair Labor Standards
Act.” (Wage Order 4, subd. 2(K).) Wage Order 5 applies to persons employed in
the public housekeeping industry. (Wage Order 5, subd. 1.) Its definition of hours
worked includes (1) the “control” and “suffered or permitted” language common
to all wage orders, (2) the health care industry language that appears in Wage
Order 4, and (3) language providing that, “in the case of an employee who is
required to reside on the employment premises, that time spent carrying out
assigned duties shall be counted as hours worked.” (Wage Order 5, subd. 2(K).)



                                          5
which an employee is subject to the control of an employer‟ and „time the
employee is suffered or permitted to work, whether or not required to do so‟ ” can
be viewed “as independent factors, each of which defines whether certain time
spent is compensable as „hours worked.‟ Thus, an employee who is subject to an
employer‟s control does not have to be working during that time to be
compensated . . . .” (Morillion, supra, 22 Cal.4th at p. 582.)
       We independently review the construction of statutes (Kirby v. Immoos
Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250), and begin with the text. If it
“is clear and unambiguous our inquiry ends.” (Murphy, supra, 40 Cal.4th at
p. 1103.) Wage and hour laws are “to be construed so as to promote employee
protection.” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
340; see Brinker, supra, 53 Cal.4th at pp. 1026-1027.) These principles apply
equally to the construction of wage orders. (Brinker, at p. 1027.) Additionally,
when the relevant facts are not in dispute, what qualifies as hours worked is a
question of law, reviewed de novo. (See Ramirez v. Yosemite Water Co. (1999) 20
Cal.4th 785, 794.)
                                    Hours Worked
       It is well established that an employee‟s on-call or standby time may
require compensation. “Of course an employer, if he chooses, may hire a man to
do nothing, or to do nothing but wait for something to happen. Refraining from
other activity often is a factor of instant readiness to serve, and idleness plays a
part in all employments in a stand-by capacity. Readiness to serve may be hired,
quite as much as service itself, and time spent lying in wait for threats to the safety
of the employer‟s property may be treated by the parties as a benefit to the
employer.” (Armour & Co. v. Wantock (1944) 323 U.S. 126, 133; see Skidmore v.
Swift & Co. (1944) 323 U.S. 134, 137 [“Facts may show that the employee was
engaged to wait, or they may show that he waited to be engaged.”]; Madera Police

                                           6
Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, 406 (Madera) [concluding
officers‟ on-call mealtime was compensable hours worked].)
       California courts considering whether on-call time constitutes hours worked
have primarily focused on the extent of the employer‟s control. (E.g., Ghazaryan
v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1535 (Ghazaryan); Bono
Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 974-975 (Bono),
disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw
(1996) 14 Cal.4th 557, 573-574.) Indeed, we have stated that “[t]he level of the
employer‟s control over its employees . . . is determinative” in resolving the issue.
(Morillion, supra, 22 Cal.4th at p. 587.) “ „When an employer directs, commands
or restrains an employee from leaving the work place . . . and thus prevents the
employee from using the time effectively for his or her own purposes, that
employee remains subject to the employer‟s control. According to [the definition
of hours worked], that employee must be paid.‟ ” (Id. at p. 583.)
       Courts have identified various factors bearing on an employer‟s control
during on-call time: “ „(1) whether there was an on-premises living requirement;
(2) whether there were excessive geographical restrictions on employee‟s
movements; (3) whether the frequency of calls was unduly restrictive;
(4) whether a fixed time limit for response was unduly restrictive; (5) whether the
on-call employee could easily trade on-call responsibilities; (6) whether use of a
pager could ease restrictions; and (7) whether the employee had actually engaged
in personal activities during call-in time.‟ ([Owens v. Local No. 169 (9th Cir.
1992) 971 F.2d 347,] 351, fns. omitted.)” (Gomez v. Lincare, Inc. (2009) 173
Cal.App.4th 508, 523-524 (Gomez).) 9 Courts have also taken into account

9     Gomez also identified the parties‟ agreement as a factor to consider when
determining whether on-call time constitutes hours worked. (Gomez, supra, 173
                                                           (footnote continued on next page)


                                          7
whether the “[o]n-call waiting time . . . is spent primarily for the benefit of the
employer and its business.” (Gomez, at p. 523; see Madera, supra, 36 Cal.3d at
p. 409; Ghazaryan, supra, 169 Cal.App.4th at p. 1535.) Here, the Court of Appeal
properly concluded that the “guards‟ on-call hours represent hours worked for
purposes of Wage Order No. 4.”
        The guards here were required to “reside” in their trailers as a condition of
employment and spend on-call hours in their trailers or elsewhere at the worksite.
They were obliged to respond, immediately and in uniform, if they were contacted
by a dispatcher or became aware of suspicious activity. Guards could not easily
trade on-call responsibilities. They could only request relief from a dispatcher and
wait to see if a reliever was available. If no relief could be secured, as happened
on occasion, guards could not leave the worksite. CPS exerted control in a variety
of other ways. Even if relieved, guards had to report where they were going, were
subject to recall, and could be no more than 30 minutes away from the site.
Restrictions were placed on nonemployee visitors, pets, and alcohol use.
        Additionally, the Court of Appeal correctly determined that the guards‟ on-
call time was spent primarily for the benefit of CPS. The parties stipulated that
“CPS‟s business model is based on the idea that construction sites should have an
active security presence during the morning and evening hours when construction


(footnote continued from previous page)

Cal.App.4th at p. 523.) The court in Ghazaryan came to a contrary conclusion.
“[U]nder California law „the existence of an “agreement” regarding the
understanding of the parties [as to the compensation policy] is of no importance.
The ultimate consideration in applying the California law is determining the extent
of the “control” exercised.‟ ” (Ghazaryan, supra, 169 Cal.App.4th at p. 1535,
fn. 10; see Lab. Code, § 1194, subd. (a) [“[n]otwithstanding any agreement to
work for a lesser wage . . .”].) We need not resolve that conflict here.



                                           8
workers arrive and depart the site, but that theft and vandalism during the night
and weekend hours can be deterred effectively by the mere presence of a security
guard in a residential trailer.” Thus, even when not actively responding to
disturbances, guards‟ “mere presence” was integral to CPS‟s business. Indeed, the
parties also stipulated that CPS would have been in breach of its service agreement
had a guard or reliever not been at the worksite during all contracted for hours.10
       CPS’s Arguments
       CPS notes that on-call guards engaged in personal activities, including
sleeping, showering, eating, reading, watching television, and browsing the
Internet. Although relevant, this fact does not compel a different conclusion.
Morillion held that time spent traveling to and from work on employer-provided
buses constituted compensable hours worked. (Morillion, supra, 22 Cal.4th at
p. 578.) It rejected the employer‟s claim “that plaintiffs were not under its control
during the required bus ride because they could read on the bus, or perform other
personal activities. . . . Allowing plaintiffs the circumscribed activities of reading
or sleeping does not affect, much less eliminate, the control [the employer]
exercises by requiring them to travel on its buses . . . . Similarly, as one amicus
curiae suggests, listening to music and drinking coffee while working in an office
setting can also be characterized as personal activities, which would not otherwise
render the time working noncompensable.” (Id. at p. 586; see Bono, supra, 32
Cal.App.4th at pp. 971-972 [time employee is required to remain at workplace


10     Employees sent to a worksite to relieve an on-call guard were paid even if
events did not require that they investigate a disturbance. This policy meant that
an on-call guard who performed no investigation, and had not asked to be relieved,
was not paid, but a reliever doing the same was paid. This reality supports the
conclusion that guards were “engaged to wait, [not] . . . wait[ing] to be engaged.”
(Skidmore v. Swift & Co., supra, 323 U.S. at p. 137.)



                                           9
during lunch constitutes hours worked even when relieved of all job duties];
Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 30
(Aguilar) [time employee is required to remain at workplace is hours worked even
if permitted to sleep].) So too here. The fact that guards could engage in limited
personal activities does not lessen the extent of CPS‟s control. It is the extent of
employer control here that renders on-call time compensable hours worked under
Wage Order 4.
       In arguing against this result, CPS urges that we should incorporate 29
Code of Federal Regulations part 785.23 (part 785.23)11 into Wage Order 4 by
implication. As relevant here, part 785.23 provides, “An employee who resides on
his employer‟s premises on a permanent basis or for extended periods of time is
not considered as working all the time he is on the premises. Ordinarily, he may
engage in normal private pursuits and thus have enough time for eating, sleeping,
entertaining, and other periods of complete freedom from all duties when he may
leave the premises for purposes of his own. It is, of course, difficult to determine
the exact hours worked under these circumstances and any reasonable agreement
of the parties which takes into consideration all of the pertinent facts will be
accepted.” CPS contends that, under this federal approach, its treatment of on-call
time as generally uncompensated “free time” should be deemed lawful. 12 The
Court of Appeal correctly rejected this argument.




11    Title 29 Code of Federal Regulations part 785 et seq. contains regulations
concerning what constitutes hours worked within the meaning of the Fair Labor
Standards Act of 1938 (29 U.S.C. § 201 et seq. (FLSA)).
12     The Court of Appeal concluded that, even if incorporated, part 785.23 did
not apply to these facts. We need not address this point.



                                          10
       Federal regulations provide a level of employee protection that a state may
not derogate. Nevertheless, California is free to offer greater protection. We have
stated that, “[a]bsent convincing evidence of the IWC‟s intent to adopt the federal
standard for determining whether time . . . is compensable under state law, we
decline to import any federal standard, which expressly eliminates substantial
protections to employees, by implication.” (Morillion, supra, 22 Cal.4th at
p. 592.) More recently, we have “cautioned against „confounding federal and state
labor law‟ [citation] and explained „that where the language or intent of state and
federal labor laws substantially differ, reliance on federal regulations or
interpretations to construe state regulations is misplaced.‟ ” (Martinez, supra, 49
Cal.4th at p. 68.)
       CPS identifies no analog to part 785.23 in Wage Order 4. By contrast,
Wage Order 5, which applies to public housekeeping workers, does contain
analogous language. Its definition of hours worked provides that, “in the case of
an employee who is required to reside on the employment premises, that time
spent carrying out assigned duties shall be counted as hours worked.” (Wage
Order 5, subd. 2(K), italics added.) Wage Order 4, as noted, does not contain
language limiting hours worked to “time spent carrying out assigned duties.” (See
Morillion, supra, 22 Cal.4th at p. 592.)
       Furthermore, other language in Wage Order 4 demonstrates that the IWC
knew how to explicitly incorporate federal law and regulations when it wished to
do so. For example, the wage order provides that, within the health care industry,
hours worked should be interpreted in accordance with the FLSA. (Wage Order 4,
subd. 2(K).) But the order makes no reference to federal law applying in the case
of guards. The language chosen by the IWC does not support CPS‟s argument
that a broad importation was intended. Indeed, it supports the contrary conclusion:



                                           11
The IWC intended to import federal rules only in those circumstances to which the
IWC made specific reference.
                The Exclusion of Sleep Time from 24-Hour Shifts
       The remaining question is whether sleep time may be excluded from
plaintiffs‟ 24-hour shifts. On this issue, the Court of Appeal relied on Monzon,
supra, 224 Cal.App.3d 16, and Seymore, supra, 194 Cal.App.4th 361, to conclude
that all industry-specific wage orders implicitly incorporate a federal regulation
that permits the exclusion of eight hours of sleep time from employees‟ 24-hour
shifts. We reject that analysis as fundamentally inconsistent with our opinion in
Morillion, supra, 22 Cal.4th 575.
       In Monzon, ambulance drivers and attendants sued to recover unpaid
overtime compensation. (Monzon, supra, 224 Cal.App.3d at p. 22.) The workers
fell not under Wage Order 4, but instead under IWC wage order No. 9 (Cal. Code
Regs., tit. 8, § 11090 (Wage Order 9)). (Monzon, at p. 22.) To resolve the case,
the Monzon court considered whether the parties had lawfully agreed to exclude
eight hours of sleep time from otherwise compensable hours worked in a 24-hour
shift. (Ibid.) Both Wage Orders 4 and 9 impose daily and weekly overtime
obligations. (Wage Order 9, subd. 3(A); see ante, at p. 5 & fn. 7.) Unlike Wage
Order 4, however, Wage Order 9 also contains a narrow exception to its daily
overtime provision. The exception states: “The daily overtime provision . . . shall
not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty
who have agreed in writing to exclude from daily time worked not more than three
(3) meal periods of not more than one (1) hour each and a regularly scheduled
uninterrupted sleeping period of not more than eight (8) hours.” (Wage Order 9,
subd. 3(K); see Wage Order 5, subd. 3(J) [virtually identical provision].)
       While Wage Order 9‟s “sleeping period” exception may be open to several
interpretations, the Monzon court concluded it did not apply in that case because

                                         12
the parties had not entered into a written agreement, which the exception requires.
(Monzon, supra, 224 Cal.App.3d at pp. 40-41.) The majority nonetheless
determined that the parties had lawfully agreed “to exclude sleep time from
compensable time.”13 (Monzon, at p. 41, italics added.) It reasoned that the
sleeping period exception requiring a written agreement only governs whether the
daily overtime provision applies; noncompliance with the exception‟s
requirements does not prevent the parties from agreeing that sleep time does not
constitute hours worked and thus need not be compensated. (Id. at p. 45.) In
concluding that the parties so agreed, the majority relied upon 29 Code of Federal
Regulations part 785.22 (part 785.22). (Monzon, at p. 45.)
       Part 785.22(a) provides: “Where an employee is required to be on duty for
24 hours or more, the employer and the employee may agree to exclude . . . a bona
fide regularly scheduled sleeping period of not more than 8 hours from hours
worked, provided adequate sleeping facilities are furnished by the employer and
the employee can usually enjoy an uninterrupted night‟s sleep. . . . Where no
expressed or implied agreement to the contrary is present, the 8 hours of sleeping
time . . . constitute hours worked.” Monzon discussed part 785.22, the history of
Wage Order 9‟s “sleeping period” exception, and the views of the Division of




13      To be clear, Wage Order 9, subdivision 3(K) allows ambulance drivers and
attendants working 24-hours shifts to agree in writing to exclude sleep time from
daily overtime. Such an employee would nevertheless receive his or her regular
rate of pay for every hour worked as well as overtime for all hours worked over 40
hours in the workweek. Monzon, by comparison, permitted such workers to agree,
orally or in writing, to exclude sleep time from compensable hours worked. That
is, such employees would be paid nothing for the sleeping period. The remaining
16 hours would remain subject to Wage Order 9‟s daily overtime provisions.




                                        13
Labor Standards Enforcement (DLSE).14 (Monzon, supra, 224 Cal.App.3d at
pp. 43-45.) The majority then concluded that the “IWC considers an agreement to
exclude sleep time” from hours worked in a 24-hour shift to be “acceptable.” (Id.
at p. 45.) Over a dissent (id. at pp. 49-50 (conc. & dis. opn. of Johnson, J.)), the
majority held that such an agreement need not be in writing.15 (Monzon, at p. 46;
contra, Aguilar, supra, 234 Cal.App.3d at p. 34.)
       Monzon is not a paragon of clarity. At times it appears that its reliance on
part 785.22 is based on the similarity between the state and federal definitions of
hours worked. (E.g., Monzon, supra, 224 Cal.App.3d at pp. 45-46.) We have
subsequently rejected such reasoning. (Morillion, supra, 22 Cal.4th at p. 590.)
Alternatively, Monzon could be read as basing its reliance on evidence that the
IWC intended to adopt the federal standard with regard to ambulance drivers and
attendants. (E.g., Monzon, at p. 45.) Whatever its rationale, Monzon dealt solely
with ambulance drivers and attendants and made specific reference to the realities
of that industry. The DLSE subsequently recognized the limited scope of
Monzon‟s holding. (E.g., Dept. Industrial Relations, DLSE Opn. Letter No.
1998.05.29 (May 29, 1998) p. 2.) At oral argument, plaintiffs‟ counsel invited us
to disapprove Monzon. However, the narrow Monzon rule has stood to regulate
the compensation of ambulance drivers and attendants for nearly 25 years.
Moreover, its application is not at issue here. It is sufficient to note that Monzon‟s
holding is limited to its facts.


14     The DLSE is the state agency empowered to enforce California‟s labor
laws. (Morillion, supra, 22 Cal.4th at p. 581.)
15     Oddly, this interpretation means an employer needs a written agreement to
avoid paying overtime compensation, but does not need a written agreement to
avoid paying any compensation at all.



                                          14
       In 2011, Seymore substantially expanded Monzon‟s 1990 holding. In
Seymore, ship crewmembers, also governed by Wage Order 9, sued to recover
unpaid overtime compensation. (Seymore, supra, 194 Cal.App.4th at pp. 365,
373.) The Court of Appeal considered whether the parties had lawfully agreed to
exclude eight hours of sleep time from otherwise compensable hours worked in a
24-hour shift. (Id. at p. 365.) Relying on Monzon, the court concluded that they
had. (Id. at pp. 381-382.) The court deemed irrelevant that Monzon and Wage
Order 9‟s sleeping period exception both concerned only ambulance drivers and
attendants. (Seymore, at p. 381.) Seymore reasoned that the sleeping period
“exemption is not the source of the more general sleep time exclusion; the
exclusion of sleep time from compensable hours worked by 24-hour employees is
implied from the terms of [part 785.22].” (Id. at p. 382.) Seymore continued,
“[Monzon] read into [Wage Order 9] . . . the provisions of the federal regulation,
. . . part 785.22” and, unlike Wage Order 9‟s sleeping period exception, part
785.22 applies to all employees who work 24-hour shifts. (Seymore, at p. 382.)
       We disapprove Seymore v. Metson Marine, Inc., supra, 194 Cal.App.4th
361, as an improper extension of Monzon. As we stated in Morillion, courts
should not incorporate a federal standard concerning what time is compensable
“[a]bsent convincing evidence of the IWC‟s intent . . . .” (Morillion, supra, 22
Cal.4th at p. 592, italics added.) Unlike Monzon, which at least could point to
some evidence of the IWC‟s intent concerning ambulance drivers and attendants,
Seymore identified no such indication, much less convincing evidence, that the
IWC intended to permit the exclusion of sleep time from compensable hours
worked for all employees working 24-hour shifts.
       In concluding that CPS and plaintiffs could agree to exclude on-call hours
from plaintiffs‟ 24-hour shifts, the Court of Appeal here cited Monzon and
Seymore, extending Seymore‟s reasoning to its fullest conclusion. That is, the

                                         15
court below rejected the notion that the ability to exclude sleep time from 24-hour
shifts is limited to ambulance drivers and attendants or employees covered by
Wage Order 9. “We agree with the courts in Seymore and Monzon that because
the state and federal definitions of hours worked are comparable and have a
similar purpose, federal regulations and authorities may properly be consulted to
determine whether sleep time may be excluded from 24-hour shifts. Further, we
find this determination to be applicable to all wage orders that include essentially
the same definition of „hours worked‟ found in Wage Order No. 9, including
Wage Order No. 4.” (Italics added.) This conclusion is both sweeping and
incorrect.
       With regard to the relevance of similarities between state and federal
definitions of hours worked, Morillion is particularly instructive. In concluding
that employees‟ travel time was compensable under state law, we stated that “we
do not believe the similarity or differences between the [state and federal]
definitions of „hours worked‟ is dispositive of whether plaintiffs‟ compulsory
travel time is compensable under state law.” (Morillion, supra, 22 Cal.4th at
p. 590.) The relevant issue in deciding whether the federal standard had been
implicitly incorporated was whether state law and the wage order contained an
express exemption similar to that found in federal law. (Ibid.)
       Wage Order 4 contains no analog to part 785.22. By contrast, the IWC has
adopted similar language in other wage orders. For example, Wage Order 5
provides that, for “[e]mployees with direct responsibility for children who . . . are
receiving 24 hour residential care,” “[t]ime spent sleeping shall not be included as
hours worked.”16 (Wage Order 5, subd. 3(E)(2), (2)(d).) Wage Orders 5 and 9

16      In its statement as to the basis for this provision, the IWC stated that “the
definition of „sleeping‟ is intended to be consistent with the meaning in the
                                                            (footnote continued on next page)


                                          16
contain the previously discussed sleeping period exception. (Wage Order 5,
subd. 3(J); Wage Order 9, subd. 3(K).) Wage Order 5 also provides that, for
employees who are required to reside on the employment premises, hours worked
includes “that time spent carrying out assigned duties,” which would obviously
exclude time spent sleeping. (Wage Order 5, subd. 2(K).)
        The absence of language addressing sleep time in Wage Order 4 seriously
undermines the notion that the IWC intended to incorporate part 785.22 sotto
voce.17 (See Morillion, supra, 22 Cal.4th at p. 592.) Because application of part
785.22 would “eliminate[] substantial protections to employees,” we decline to
import it into Wage Order 4 by implication. (Morillion, at p. 592.) A contrary
result would have a dramatic impact, particularly in light of the Court of Appeal‟s
conclusion that part 785.22 is implicitly incorporated into all 16 industry-specific
wage orders, even though only Wage Orders 5 and 9 contain language providing
for the exclusion of sleep time.




(footnote continued from previous page)

[FLSA] and in the IWC‟s other wage orders that sleep time is not included in the
definition of „hours worked.‟ ” (IWC, Statement as to the Basis for Amendments
to Wage Order No. 5 Regarding Employees Working in Group Homes (Jan. 1,
2002) p. 4.) CPS contends that this means the IWC intended to permit the
exclusion of sleep time from hours worked as to all wage orders. The argument
fails. The meaning of the cited statement is less than clear and could just as easily
have been referring to those specific wage orders that explicitly mention the
exclusion of sleep time.
17     We have observed “that where the IWC intended the FLSA to apply to
wage orders, it has specifically so stated.” (Morillion, supra, 22 Cal.4th at p. 592.)
As previously noted (ante, at p. 11), Wage Order 4 itself demonstrates that the
IWC knows how to expressly incorporate federal law and regulations when it
desires to do so. (E.g., Wage Order 4, subd. 1(A)(1)(e), (2)(f), (3)(e).)



                                          17
       In support of its conclusion, the Court of Appeal also opined that there were
“sound reasons for permitting an employer who engages an employee to work a
24-hour shift . . . to exclude . . . eight hours for sleep time . . . . 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 . . . ensures that the employees
receive an adequate wage.” We rejected a nearly identical argument in Morillion.
(Morillion, supra, 22 Cal.4th at pp. 587-588 [rejecting the argument that
employees would have had to commute anyway].) More importantly, we
instructed courts not to “engage in needless policy determinations regarding wage
orders the IWC promulgates.” (Ibid.) Judicial review of “ „wage orders is
properly circumscribed. . . . “A reviewing court does not superimpose its own
policy judgment upon [the IWC] in the absence of an arbitrary decision . . . .” ‟ ”
(Martinez, supra, 49 Cal.4th at p. 61.)
       We recognize that the DLSE has, at various times, seemed to approve
CPS‟s policy of excluding sleep time as complying with state law. In 1996, the
DLSE began an investigation into CPS‟s compensation practices. In a 1997 letter
to CPS, the acting labor commissioner concluded that the company could,
pursuant to a written agreement, exclude sleep time. That position was
subsequently and explicitly disavowed, however, in a 1999 letter to CPS from the
newly appointed labor commissioner, and again in a 2002 letter to CPS from the
DLSE chief counsel. The 1999 and 2002 letters rejected the position taken in the
1997 letter as incorrect and in conflict with established California law, and also
dismissed CPS‟s reliance on federal regulations. CPS subsequently filed an action
for declaratory relief against the labor commissioner, who filed a cross-complaint.
Before trial, the parties settled and signed a memorandum of understanding
(MOU). Pursuant to the MOU, which expired in 2007, CPS adopted its current



                                           18
compensation policy and the labor commissioner took the position that CPS‟s
policy complied with all applicable wage orders.
          The DLSE‟s past views offer little help in resolving the issue here.18
Although entitled to consideration and respect, the agency‟s construction of wage
orders is not binding on this court, especially when its stance has been vacillating
and contradictory. (Murphy, supra, 40 Cal.4th at p. 1105, fn. 7.) Moreover, we
note that, while the DLSE is charged with administering and enforcing
California‟s labor laws, it is the Legislature and the IWC that possess the authority
to enact laws and promulgate wage orders. (Aguilar, supra, 234 Cal.App.3d at
p. 26.)
          There is no evidence that the IWC intended to incorporate part 785.22 into
Wage Order 4. Accordingly, we conclude that the wage order does not permit the
exclusion of sleep time from compensable hours worked in 24-hour shifts covered
by Wage Order 4. We express no opinion as what may be required in other
circumstances regulated by other wage orders.




18      We acknowledge CPS‟s efforts to ascertain whether its policy complied
with California‟s labor laws and recognize the difficulty it and other employers
can face in this regard. Several factors may contribute to ongoing uncertainty,
including the defunding of the IWC and the lack of adequate funding for DLSE
enforcement. Such issues, however, must be addressed by the Legislature. At oral
argument, CPS‟s counsel urged that our decision only apply prospectively. “The
general rule that judicial decisions are given retroactive effect is basic in our legal
tradition.” (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978.) We
see no reason to depart from the general rule here. (Sierra Club v. San Joaquin
Local Agency Formation Com. (1999) 21 Cal.4th 489, 509 [acknowledging the
existence of “ „narrow exceptions to the general rule‟ ” (italics added)].) This is
particularly true given that, until Seymore, supra, 194 Cal.App.4th 361, was
decided three years ago, Monzon, supra, 224 Cal.App.3d 16, was properly
interpreted as applying only to ambulance drivers and attendants.



                                            19
                                   III. CONCLUSION
       We affirm the Court of Appeal‟s conclusion that plaintiffs‟ on-call time
constituted hours worked within the meaning of Wage Order 4 and was subject to
the wage order‟s minimum wage and overtime provisions. We reverse the court‟s
conclusion that state and federal regulations permitted CPS to exclude sleep time
from plaintiffs‟ 24-hour shifts.
                                                        CORRIGAN, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
BAXTER, J.*
FYBEL, J.**




_____________________________
*      Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

**     Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.


                                         20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Mendiola v. CPS Security Solutions, Inc.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 217 Cal.App.4th 851
Rehearing Granted

__________________________________________________________________________________

Opinion No. S212704
Date Filed: January 8, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Jane L. Johnson

__________________________________________________________________________________

Counsel:

Blank Rome, Howard M. Knee; and Jim D. Newman for Defendants, Cross-complainants and Appellants.

Law Offices of Cathe L. Caraway-Howard, Cathe L. Caraway-Howard; Natividad Law Firm, Caesar S.
Natividad; Locker Folberg and Miles E. Locker for Plaintiffs, Cross-defendants and Respondents.

Hina B. Shah for Women‟s Employment Rights Clinic of Golden Gate University School of Law, Asian
Americans Advancing Justice - Asian Law Caucus, Katharine and George Alexander Community Law
Center, Legal Aid Society - Employment Law Center, the Maintenance Cooperation Trust Fund, National
Lawyers Guild - Labor and Employment Committee, UC Hastings Civil Justice Clinic, UCLA Labor
Center and Worksafe Inc., as Amici Curiae on behalf of Plaintiffs, Cross-defendants and Respondents.

David A. Sanders; Carroll, Burdick & McDonough, Gregg McLean Adam and Jennifer S. Stoughton for
California Correctional Peace Officers‟ Association as Amicus Curiae on behalf of Plaintiffs, Cross-
defendants and Respondents.




                                                  1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Howard M. Knee
Blank Rome
2029 Century Park East, 6th Floor
Los Angeles, CA 90067
(424) 239-3400

Jim D. Newman
CPS Security Solutions, Inc.
436 W. Walnut Street
Gardena, CA 90248
(310) 878-8165

Cathe L. Caraway-Howard
Law Offices of Cathe L. Caraway-Howard
8117 Manchester Avenue, Suite 505
Playa Del Rey, CA 90293
(310) 488-9020

Hina B. Shah
Women‟s Employment Rights Clinic
Golden Gate University School of Law
536 Mission Street
San Francisco, CA 94105-2968
(415) 442-6649




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