Calculating Hours Worked During A 14-Day Hitch

Two Metson Marine employees worked 14-day hitches on Metson's ships providing emergency clean up of oils spills and other environmentally hazardous discharges off the California coast. During their hitches, the employees were required to sleep on the ships. Metson allotted 12 hours out of the day to work, and 12 hours to off-duty (three hours for meals, eight hours for sleep, and an hour for free time). During their off duty time, employees were required to carry a cell phone or pager and be able to return to the ship within 45 minutes of a call. While on the ship they were subject to call at any time.

In Seymore v. Metson Marine, Inc., Case No. A127489 (Cal. Ct. App. 2/28/20110), the California Court of Appeal in San Francisco ruled that the off-duty hours all constituted hours worked under California wage and hour rules. The employees' circumstances on the ships made them "subject to the control of an employer," the California standard for determining what constitutes hours worked. (See Wage Order No. 9, subdivision 2(G) and the explanation of the provision in Morillion v. Royal Packing Co., 22 Cal. 4th 575, 94 Cal.Rptr.2d 3 (2000).) However, by specifying the eight hours assigned for sleep in its employee handbook, the company created an implied agreement that it need not pay for those hours.

The Court of Appeal rejected the employer's attempt to reduce the number of overtime hours through its definition of the workweek. Although the 14-day hitch ran from 12 noon Tuesday to 12 noon two Tuesdays later, Metson designated a workweek that ran from 12:00 am Monday through 11:59 pm the following Sunday. It did so to avoid the premium pay for hours on the seventh consecutive day of work required by California law. The court ruled that the employer could not use an artificial workweek solely for the purpose of computing overtime. "[The employer] may designate any workweek it wishes, but the workweek it selects and requires its employees to observe is the workweek it must use for the purpose of calculating employee compensation."

Is Boot Up Time Work Time?

Over the past several months there has been much ado about the status of time employees spend waiting for their computers to boot up. Class actions have been filed against Cigna Corp., AT&T and BellSouth, and United HealthGroup, in which employee lawyers allege that the employers have not been paying for time employees spend waiting for their computers to start up and shut down.

Although the press has labeled these a new type of lawsuit, they involve straightforward application of settled principles about the concept of hours worked. Under both the federal Department of Labor regulations and the California Division of Labor Standards Enforcement guidelines, time that employees spend waiting for something to happen after they get to work constitute hours worked, because the employee remains subject to the control of the employer. The time does not count toward hours worked only if there is a sufficient break in work for employees to devote time to their own pursuits. For the federal and state administrative interpretations see 29 CFR sec. 785.14 and section 46 of the DLSE Enforcement Policies and Interpretations Manual.

Section 785.15 of the federal regulations gives the following examples: "A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity."

While it is impossible to state a definitive view based on the bare bones information reported in the stories about the booting up cases, waiting for a computer to boot up would appear to be constitute work under the applicable principles. If employers are truly concerned about work time lost to boot up time, they should develop technological solutions that assure their computer systems are ready when employees arrive for work.