Ambulance crew sleep-period exclusion from hours worked requires at least five uninterrupted hours

STATE OF CALIFORNIA PETE WILSON, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
Headquarters Office
45 Fremont Street, Suite 3250
San Francisco, CA 94105
(415) 975-2080
(415) 975-0772 Fax

Office of the
State Labor Commissioner

May 29, 1998

Re: Exclusion of Sleep Periods from Hours Worked Under the
Ambulance Driver and Attendant Provisions of IWC Orders
5-98 and 9-98

In reviewing my letter to you, dated October 22, 1997,
concerning the impact of the new Industrial Welfare Commission
("IWC") Wage Orders, it has become apparent that we must clarify our
answer to the question: "Under Wage Order 5 and 9, what hours does
an employer have to count as time worked if an employee does not
receive eight hours of uninterrupted sleep time? Is it all the
sleep time or only the hours that were actually worked?"

As indicated in the earlier letter, there are provisions in
both IWC Orders 5-98 and 9-98, dealing with ambulance drivers and
attendants, that allow such employees who are scheduled for 24 hour
shifts of duty to agree, "in writing to exclude from daily time
worked not more than three meal periods of not more than one hour
each and a regularly scheduled uninterrupted sleep period of not
more than eight hours."

In order to exclude such a sleep period from daily time
worked, the sleep period must be "regularly scheduled" and
"uninterrupted." The IWC Orders provide for a maximum exclusion of
eight hours sleep time, so that even if the employee enjoys a
regularly scheduled sleep period of more than eight hours, only
eight hours can be excluded.

Unfortunately, the previous letter suggested that if the
employee receives less than eight hours uninterrupted sleep, all
sleep time must be counted as time worked and paid accordingly. In
fact, the question of whether sleep periods of less than eight
hours can be excluded from daily time worked was addressed by the

May 29, 1998
Page 2

court in Monzon v. Schaefer Ambulance Service (1990) 224 Cal.App.3d

16. In that case, the court held that under the IWC Orders that
    preceded 5-98 and 9-98, an employer can enter into an agreement
    with ambulance drivers and attendants "to exclude up to eight hours
    of sleep time from work or compensable time on twenty-four hour
    shifts if adequate sleeping facilities are provided by the employer
    and the employee has the opportunity to get at least five hours of
    uninterrupted sleep. If the employee does not get five hours of
    uninterrupted sleep, then the entire time must be considered as
    hours worked." This holding was largely based upon the express
    intent of the IWC in its "Statement on Special Provision for
    Ambulance Industry in Orders 5-80 and 9-80."

Although Monzon was decided under the former Wage Orders, its
reasoning, as to the amount of uninterrupted sleep time that can be
treated as non-work time, would appear to apply with equal force to
the new Orders. We therefore conclude that under IWC Orders 5-98
and 9-98, uninterrupted sleep time of at least five hours, but no
more than eight hours, can be excluded from time worked, provided
that there is an agreement between the employer and the ambulance
drivers and attendants to exclude sleeping time from hours worked,
that the sleep period is regularly scheduled, and that the employer
provides adequate sleeping facilities. If the sleep time is not
uninterrupted, or if any other requirement for the exclusion of
such hours from time worked is lacking, all sleep hours would
constitute compensable hours worked.

Please accept my apology for any confusion caused by the
previous letter on this subject. As always, feel free to contact
me with any other questions or comments.

Sincerely,

JOSE MILLAN
State Labor Commissioner

cc: Robyn Black
John Duncan
John Rea