California Labor &
Employment Law Blog
Apr 15, 2011

Beware of Designating Workweek to Avoid Payment of Overtime

Topics: Court Decisions, Wage & Hour Issues

A California court held this week that an employer failed to properly pay overtime to its employees by artificially designating the workweek so as to avoid payment of overtime due for the 7th consecutive day of work. The court further held that on-call time needed to be paid ashours worked where employees were required to sleep aboard the employer's ships and otherwise be within 45 minutes of the ship.

In Seymore v. Metson Marine, Inc., the plaintiffs worked14 day "hitches" (alternating with 14 day rest periods) on the employer's ships, performing cleanup of oil spills and other environmental hazards.The employer designated the workweekto start and end in such as way as to avoid paying7th day overtimecompensation on the 14th day of work.As a result, the plaintiffs only received the 7th day premium on the 7th day of work, but not the 14th.Although the court acknowledged variouslegalauthorities supporting anemployer's right to designate the workweek for payroll purposes, the court held that where the purposeof the designation appears designed solely for the purpose of evading overtime compensation, it is not permissible. The court held that in this case there was no evidence presented that thedesignation was for anyreason otherthan evading overtime compensation requirements.

The court also held that the employer failed to properly compensate employees for on-call time. Within the 14-day work period, the plaintiffs had periods of "off-duty, standy-by" time where they were permitted to leave the ship and do personal errands and the like. However, they were required to carry a cell phone or pager, refrain from alcohol consumption,and be within 30-45 minutes of the ship in the event of an emergency. The court held that this stand-by time was hours worked and needed to be paid as such because the employees were subject to the control of the employer.

The only good news for the employer in this case was that the court at least acknowledged that the employees' sleep time on the ship was not compensable as hours worked. Plaintiffs had actually sought to be paid for this eight hours of sleep time each day.

It would not be surprising if the employer seeks review of this decision by the California Supreme Court. In the meantime, employers should use caution in designating their workweeks in such a way as to evade overtime compensation requirements. Employers with on-call employees are advised to review the Metson opinion as well.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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