Wage requirements for camp counselors

STATE OF CALIFORNIA GRAY DAVIS, Governor

DEPARTMENT OF INDUSTRIAL RELATIONS

DIVISION OF LABOR STANDARDS ENFORCEMENT
Santa Rosa Legal Section
50 D Street, Suite 360
Santa Rosa, CA 95404
(707) 676-6788

H. THOMAS CADELL, Of Counsel

                                 December 9,    2002

Robert Gerard, Esq.
Friedman Peterson Stroffe & Gerard, P.C.
19800 MacArthur Blvd., Suite 1100
Irvine, CA 92612-2425

      Re:        Wage Requirements For Camp Counselors (00258)

Dear Mr. Gerard:

 I have been asked to respond to your letter regarding the

above-referenced subject written to the Chief Counsel. Please
excuse the delay in responding to this inquiry.

 In your letter, you state that your client sponsors

educational programs which include outdoor overnight camps in both
forest and island settings. The camps range in duration from one
to five days during which time the children participate in
activities designed to educate them about the relationship between
land and sea. Participants in the island camp travel by boat to
the camp location.

 Your client, according to the letter, also sponsors programs

aboard both historic ships and modern vessels and it is during
these programs on historic ships that your client's employees re­
create for school children the maritime life in the appropriate
historic period. Your letter also states that during the course of
their duties, your client's employees supervise the children,
direct educational activities, prepare meals and monitor the safety
of the participants (we assume for purposes of this letter that
this description applies to the programs on the historic ships,
though it is not really clear). These historic ship programs
involve an overnight stay on the ship and last approximately 18
hours. The employees arrive approximately 30 minutes before the
program and may stay for approximately 15 minutes after the
children leave.

 In addition, according to your letter, your client also offers

educational programs that last approximately 3 to 5 hours and cover
topics such as oceanography and ichthyology. The client's
employee's typically work two to three overnight programs and
several day programs in a given week and their work schedules vary
from week to week. You note that your client offers its programs
year-round, though the overnight historical programs are primarily
offered during the school year.

 Initially, we wish to inform you that there is insufficient

information regarding any employees of your client except those
involved in the program you describe involving "historical ships".
Even that program is not really adequately described; however,
based on the information you do provide, we feel that we can answer
some of the questions you pose regarding that particular program.

 Your initial question is: "Is our client an 'organized camp'?"

The question is asked in an effort to establish that the program
you describe would allow your client to claim the exemption from
minimum wage and overtime requirements under the provisions of
Labor Code § 1182.4. As we explain in detail below, your
description of your client's program would prevent us from finding
that your client is an "organized camp" as that term is defined.

 § 1182.4. Organized camp employees.

  (a) No student employee, camp counselor, or program counselor
 of an organized camp shall be subject to a minimum wage or
 maximum hour order of the commission if the student employee,
 camp counselor, or program counselor receives a weekly salary
 of at least 85 percent of the minimum wage for a 40-hour week,
 regardless of the number of hours per week the student
 employee, camp counselor, or program counselor might work at
 the organized camp. If the student employee, camp counselor,
 or program counselor works less than 40 hours per week, the
 student employee, camp counselor, or program counselor shall
 be paid at least 85 percent of the minimum hourly wage for
 each hour worked.
 (b) An organized camp may deduct the value of meals and
 lodging from the salary of a student employee, camp counselor,
 or program counselor pursuant to appropriate orders of the
 commission.
 (c) As used in this section, "organized camp" means an
 organized camp, as defined in Section 18897 of the Health and
 Safety Code, which meets the standards of the American Camping
 Association.

 You conclude that Labor Code §1182.4 does not require that a

qualifying organized camp must meet the definition set forth in
Health & Safety Code Section 18897 and the standards of the
American Camping Association ("ACA"). You state that this
conclusion is supported by the fact that section 18897 does not
mention the ACA. While that observation is without doubt true, we
don't see how it has any bearing on the question of whether, in
order to meet the exemption from the overtime and minimum wage
requirements of the California law, the organization must meet the
definition of "organized camp" as set out at Labor Code Section
1182.4(c):

   "As used in this section, 'organized camp' means an organized
   camp, as defined in Section 18897 of the Health and Safety
   Code, which meets the standards of the American Camping
   Association."

 As you can see, the sentence is compound. The language is un­

ambiguous. Not only must the camp be "organized", it must also
meet the definition of "organized camp" set out in Health & Safety
Code § 18897 and it must meet the standards of the American Camping
Association. We must, therefore, disagree with your conclusion.

 The California Legislature has chosen to use the criteria

adopted by the American Camping Association:

   "The main purpose of the ACA-accreditation program is to
   educate camp owners and directors in the administration of key
   aspects of camp operation, particularly those related to
   program quality and the health and safety of campers and
   staff. The standards establish guidelines for needed policies,
   procedures, and practices." (ACA On-line Information)

 The American Camping Association is a community of camp

professionals who, for nearly 100 years, have joined together to
share knowledge and experience and to ensure the quality of camp
programs. Obviously, the California Legislature felt that by
utilizing the experience of this organization it was ensuring that
the exemption from minimum wage and overtime requirements were only
granted to groups which met the industry standards. It is
reasonable for the Legislature to expect that such certification
would insure that both the public - whose children attend the
programs - and the affected employees were protected.

 The Legislature has adopted the standards promulgated by the

ACA which cover such areas as:

• Site and Food Service • Operational and Management
• Transportation • Human Resources, and
• Health and Wellness • Program Standards.

You present no evidence to support your suggestion that "church-
sponsored camps... may not be able to afford [the accreditation
process]." Additionally, you present no evidence that your client
is unable to afford the accreditation process or that your client
is a "church-sponsored" organization. Indeed, there is no evidence
that accreditation is either "time-consuming" or "expensive" as you
state. In addition, you fail to point out how the fact that a
program is either "church-sponsored" or the sponsor is unable to
afford accreditation would impact on the question of whether the
program would have to meet the standards set out in the Labor Code.

We note that the ACA (and, incidentally, the provisions of
Health & Safety Code § 18897(a)) provide that the program must be
"at least 5 consecutive days in length or five days in not more
than 14 days." This would be one of the criteria that would have
to be met in order to qualify for the exemption.

It is clear from a reading of the statute that the Legislature
has determined that the standards of the American Camping
Association is the criterion to be used to determine eligibility
for the exemption from the minimum wage and overtime obligation of
the law. It is not possible for this agency to determine whether
your client meets the standards of the American Camping Association
without a full investigation by officers of this Division or
through the accreditation process available.

We conclude, therefore, that absent (1) accreditation by the
ACA; (2) a statement by that organization that your client's
programs meet the standards of the ACA, or (3) an independent
finding by officers of the DLSE that your client's programs meet
those standards, the workers cannot be exempt, pursuant to the
provisions of Labor Code § 1182.4, from the minimum wage and
overtime requirements of the California law.

Question numbered 3 in your letter is one of general interest
and we will answer that inquiry without implying that the answer
applies to your client's employees. You ask whether Labor Code
§ 1182.4 requires that affected employees be paid on a salary basis
in order to qualify for the minimum wage and overtime exemption.
You indicate that in your opinion the first sentence of subdivision
(a) is contradicted by the second sentence. The DLSE interprets
the language as follows:

The first sentence states that the exemption from both the
minimum wage and overtime requirements applies if the employee
receives a weekly salary of at least 85 percent of the minimum
wage based on a 40-hour workweek. Currently, that would mean
that if the affected employee received a salary of $229.50 per
week, the employer would be exempt from any further minimum wage
or overtime obligation to that employee. The second sentence
simply requires that in the event the employee works less than
40 hours per week, the employer may meet the minimum wage
obligation by paying the employee at least 85% of the
established minimum wage ($5.74 per hour) for each hour worked.
However, if the employer chooses to pay an employee of an
organized camp (other than camp counselor — organized camp
counselors may be subject to the 54-hour rule before overtime
would be owed; see IWC Order 5, Section 3(E)) only for the hours
actually worked (as opposed to a salary payment covering all
work in the workweek) all work must be paid at no less than the
minimum wage for all regular (non-overtime) hours and any work
in excess of eight hours in a workday must be paid at the
applicable premium rate. This answers your fourth question as
well.

In answer to your question numbered 5, we are not familiar with
the document you present. The term "organized camp" is already
defined in the statute and we see no reason to redefine the term.
As to the term "work time" which the document defines, we don't
know what this term refers to. The term "work time" is not used in
Labor Code Section 1182.4 nor is it used in the IWC Orders. What
is even more confusing is that the document, as you note, purports
to concern the "Application of The Provisions of IWC Order 5", yet
those Orders have never used the terms "program counselor" or
"student worker". Thus, we are not able to respond to your question
numbered 5.

Question 6 in your letter refers to the language found in IWC
Order 5, Subsection 3(E) and asks whether employees covered by that
language ("camp counselors") who work more than 54 hours in a
workweek in non-emergency situations are to be paid any differently
than those who work over 54 hours in emergency situations as
allowed in the IWC Order. Subsection 3(E) provides:

"This section does not apply to organized camp counselors who
are not employed more than 54 hours and not more than six (6)
days in any workweek except under the conditions set forth
below."

Clearly, unless the camp counselor's employment meets the 54-hour
rule or the "emergency" exception (defined at Section 2(D) of the
Order to mean "an unpredictable or unavoidable occurrence at
unscheduled intervals requiring immediate action"), the overtime
provisions of Section 3 do apply. It is the position of the DLSE
that in the event an organized camp counselor is employed more than
54 hours in a workweek and the actual hours worked in excess of 54
are not themselves directly attributable to the emergency
situation, the counselor must be paid the applicable premium pay
for all hours in excess of eight in any one day or forty in any one
workweek.

Question numbered 7 in your letter asks: "Must camp counselors
be paid for sleep time or meal time under Labor Code section 1182.4
or IWC 5-2001?"

As you know, the IWC Orders contain a definition of "Hours
Worked" which, for most purposes, includes "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" (Order 5 provides some differences in
cases of employees required to reside on the premises of the
employer — that is not the case in the facts you present).

It is the position of the DLSE that inasmuch as the Legislature
was familiar with the definition of "hours worked" which had been
adopted by the IWC as early as 1947, we must assume that the
definition must be incorporated into and used in defining the
provisions of Labor Code § 1182.4.

As to the unique provisions of the IWC Order 5, absent a finding
that the employees are required to "reside" on the premises of the
employer, all time subject to the control of the employer is
compensable.

DLSE has historically broadly interpreted the term "hours
worked". "Under California law it is only necessary that the worker
be subject to the 'control of the employer' in order to be entitled
to compensation." (DLSE Opinion Letters 1993.02.03, 1993.03.31,
1994.02.03) The California Supreme Court, in the case of Morillion
v. Royal Packing Co. (2000) 22 Cal.4th 575, 584, stated "(T)his
DLSE interpretation is consistent with our independent analysis of
hours worked."

We can discern no exception from the definition of "hours
worked" for those hours when the organized camp counselors are
required by the employer to remain on the premises, nor do we see
any exception for meal or sleep time while the employee is required
to remain on the premises (in Orders 4 and 5, the definition of
"hours worked" for employees in the "health care industry" was
limited to the definition used in connection with the FLSA,
allowing those employers to require those workers to remain on the
premises during meal periods — see 29 C.F.R. § 785.19(b); the IWC
has also allowed, under certain circumstances, ambulance drivers
and attendants to enter into written agreements with their
employers whereby uninterrupted sleep time and meal time may be
excluded from the "hours worked" in the day). It certainly seems
clear that any such exceptions, if they had been anticipated by the
IWC, would have been addressed in the specific language covering
camp counselors. We are also unfamiliar with the difference between
"direct" and "indirect" supervision of the children — the document
you ask us to refer to also speaks of "direct" supervision, leaving
the reader to conclude that there may be "indirect" supervision;
however, this agency knows of no definition of those terms in
relation to this issue. Your letter appears to state that while the
camp counselors are eating and sleeping they are exercising only
"indirect" supervision of the children. We can find no language
in the law which would differentiate or, in fact, any language
which even mentions "indirect".

We regret that we cannot be of more assistance to you. As you
can see, however, we are unable to agree with many of your
conclusions.

Yours truly,

H. THOMAS CADELL, JR.
Attorney for the Labor Commissioner

c.c. Arthur Lujan, State Labor Commissioner
Tom Grogan, Chief Deputy Labor Commissioner
Anne Stevason, Chief Counsel
Assistant Labor Commissioners
Regional Managers