MENDIOLA v. CPS SECURITY SOLUTIONS

Respondents’ Petition for Review

Cal.August 12, 2013

612704 = SUPREME COURT Case No. “pmFILED IN THE SUPREME COURT | OF THE STATE OF CALIFORNIA AUG 32 2913 Frank A. McGuire Clerk TIM MENDIOLA,et al., Deputy Plaintiffs and Respondents, V. CPS SECURITY SOLUTIONS,INC., et al., Defendants and Appellants. After a Decision of the Court of Appeal, Case No. B240519, Second Appellate District, Division Four Appeal from the Superior Court of Los Angeles County, Case Nos. BC388956, BC391669, JCCP 4605, Honorable Jane L. Johnson, Judge PETITION FOR REVIEW Cathe L. Caraway-Howard (Bar No. 143661) LAW OFFICES OF CATHE L. CARAWAY-HOWARD 8117 Manchester Avenue, Suite 505 Playa Del Rey, CA 90293 Telephone:(310) 488-9020 Facsimile: (866) 401-4556 Miles E. Locker (Bar No. 103510) LOCKER FOLBERG LLP 71 Stevenson Street, Suite 422 San Francisco, CA 94105 Telephone: (415) 962-1626 Facsimile: (415) 962-1628 Attorneysfor Plaintiffs and Respondents, TIM MENDIOLA,etal. Case No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TIM MENDIOLA,et al., Plaintiffs and Respondents, v. CPS SECURITY SOLUTIONS,INC.,et al., Defendants and Appellants. After a Decision of the Court of Appeal, Case No. B240519, Second Appellate District, Division Four Appeal from the Superior Court of Los Angeles County, Case Nos. BC388956, BC391669, JCCP 4605, Honorable Jane L. Johnson, Judge PETITION FOR REVIEW Cathe L. Caraway-Howard(Bar No. 143661) LAW OFFICES OF CATHE L. CARAWAY-HOWARD 8117 Manchester Avenue, Suite 505 Playa Del Rey, CA 90293 Telephone: (310) 488-9020 Facsimile: (866) 401-4556 Miles E. Locker (Bar No. 103510) LOCKER FOLBERG LLP 71 Stevenson Street, Suite 422 San Francisco, CA 94105 Telephone: (415) 962-1626 Facsimile: (415) 962-1628 Attorneys for Plaintiffs and Respondents, TIM MENDIOLA,et al. TABLE OF CONTENTS TABLE OF AUTHORITIES 0.0... ceeeeceseeseceseeeeeseeseeeseessesseseessesaesenseees ii TISSUE PRESENTED. 00... eeeeesesesereeeesersseaceessesesceseesseecseeeeeseenesseeans l REASONS FOR GRANTING REVIEW ouuw.eeeeceseesseseesetseseceeensesneseeens 1 STATEMENTOF THE CASE.00....esssseessesssccseseseeccessenenesseencessessesasens 9 A. Trial Court Proceedings .............csccssssssecsssccessecsesssssesesseesseteceessseeeesees 9 B. The Court of Appeal Decision........cccccssesseeeeseeseseeesesesssesesssesssens 15 LEGAL DISCUSSION ssseeussstnsstsetnesees seeseesessensenseesceaesssetseeeneesseesenes 22 A. The Test For Determining Whether a Federal Regulation Under the FLSA Applies to California Wage and HourLaw........... 22 B. The Federal Regulation Allowing Agreements to Exclude “Sleep Time” From Otherwise Compensable Hours Worked Has Not Been Expressly Adopted By Any California Law or Wage Order... ceesesesesescseesstssesssscscessssessessesessesssesaesaeseeseseaeesessaes 24 C. There Is No Indication That the IWC Had Any Intent to Make the Federal Regulation Allowing Agreements to Exclude “Sleep Time” From Otherwise Compensable “Hours Worked” Applicable to California Wage and Hour Law ou...eeseeessseeeeeees 26 D. The Court of Appeal’s Stated Policy Reasons For Enforcing Agreements to Exclude “Sleep Time” From “Hours Worked” Improperly Intrude on the IWC’s Quasi-Legislative Authority ........ 27 CONCLUSION 0...iceccseceeccsseesseetsesscesenseenssesseseseseseesseesseseceueseneseaenegs 29 TABLE OF AUTHORITIES Cases Aguilar v. Associationfor Retarded Citizens (1991) 234 Cal.App.3d 21 oeeecccscereetecsssesesenesesesseseesens 25 Brewer v. Patel (1993) 20 Cal.App.4th 1017 oeescesssescessrecseesseessseesseeeees 25 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal4th 1004oeccescsscsseseessessnesssessressserserseees 28 Bono Enterprises, Inc. v. Bradshaw (1995) 32 CalApp.4th 968 ceceeceecescsseseeseessessesssseesonesees 25 Gomezv. Lincare, Inc. (2009) 173 Cal.App.4th 508 oo...ee eeseeeseteecseseeeseseeeeseseseeee 16, 17 Isner v. Falkenberg/Gilliam & Associates, Inc. (2008) 160 Cal.App.4th 1393 oiecececsecsessserseecseeensecesseeenes 25 Industrial Welfare Commission v. Superior Court (1980) 27 Cal.3d 690 oececsseseesseseesessrscnesssesstessssessesesseseens 28 Martinez v. Combs (2010) 49 Cal.4th 35 oececseceesescseesessesssesssesssasseasseseesens 23, 28 Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16 oeeecesesesecesesseeccneessseerseesseenes passim Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 oeescsssssseeseeeseesscssrssesesssssasseeseeseees passim Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 ooeeeceeseesseeeescseseseseseseseeeseeeeseseees passim Seymore v. Metson Marine, Inc. (2011) 194 CalApp.4th 361 ooocssceee sens seeeeseeeneees passim il Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557 oo.ececcccccssccsecessssessnseesseeessecesnecsseessneeses 25 Statutes Cal. Labor Code, Section 1194 wu... cccssssccessssseccesessceeceesessseesccerseaas 3,14 California Regulations Cal. Code ofRegulations, Title 8, Section 11010 (Industrial Welfare Commission Order 1-2001) ........ eee eeeeeeees 6 Cal. Code ofRegulations, Title 8, Section 11040 (Industrial Welfare Commission Order 4-2001) ...............006 passim Cal. Code of Regulations, Title 8, Section 11050 (Industrial Welfare Commission Order 5-2001) ................ 24, 25, 26 Cal. Code of Regulations, Title 8, Section 11090 (Industrial Welfare Commission Order 9-2001) ............... 5, 6, 24, 26 Cal. Code of Regulations, Title 8, Section 11150 (Industrial Welfare Commission Order 15-2001) .......eee 6 Federal Regulations Code ofFederal Regulations, Title 29, part 785.22 oo...eeeeeeeeeeee passim Code of Federal Regulations, Title 29, part 785.23 oo... eeeeeesneetees 18,19 il ISSUE PRESENTED Whether California law differs from federal law as to whether employers and employees mayenter into enforceable agreements to exclude 8 hours of “sleep time” from time that would otherwise constitute compensable “hours worked”in a 24-hourshift. REASONS FOR GRANTING REVIEW This case presents an issue of great importanceto all California employees who work 24-hour shifts. The Court of Appeal’s decision below upheld the validity of agreements whereby eight hours of “sleep time”is deducted from the otherwise compensable “hours worked” by employees working 24-hourshifts, permitting the employer to pay nothing to its employeesfor those eight hours worked. But for the agreements authorizing the deduction, those eight hours would have to be paid at no less than the minimum wage, as the Court held that those eight hours constituted “hours worked” within the meaning of California law. In reaching its conclusionas to the enforceability of the agreements to pay nothing to these employeesfor eight hours pershift, the Court relied on a federal regulation, 29 C.F.R. part 785.22, that permits employees who are required to be on duty for 24-hoursto enter into agreements to exclude up eight hours of regularly scheduled sleep time from hours worked. The holding below is consistent with Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16,the first California decision to import and apply 29 C.F.R. part 785.22 to California wage and hourlaw, and Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, which also followed Monzon. But the Court ofAppeal’s reliance on this federal regulation, and on Monzon and Seymore, poses a fundamental conflict with a trio of decisions issued by this Court over the past decade anda half, addressing the applicability of federal regulations to California wage and hour law.In each of these three decisions — Ramirez v. Yosemite Water (1999) 20 Cal.4th 785, Morillion v. Royal Packing (2000) 22 Cal.4th 575, and Martinez v. Combs (2010) 49 Cal.4th 35 — this Court declined to apply less protective federal regulations to California wage and hour laws where neither the Legislature nor the Industrial Welfare Commission (“IWC”) ever adopted those less protective federal provisions. In each ofthese cases, this Court determined that employees were entitled to greater protection under state law than underfederal law, and onthatbasis, declined to import the less protective provisions of the federal regulations. “Courts must give the IWC’s wage orders independenteffect in order to protect the commission’s delegated authority to enforce the state’s wage laws and, as appropriate, to provide greater protection to workers than federal law affords.” (Martinez, 49 Cal.4th at 68; citing Morillion, 22 Cal.4th at 592, and Ramirez, 20 Cal.4th at 798.) The Monzon Court did not have the benefit of subsequent Supreme Court jurisprudence whenit applied 29 C.F.R. part 785.22 to uphold an agreement that was not in writing to exclude 8 hoursofsleep time from the hours worked by ambulancedrivers and attendants working 24-hourshifts, notwithstanding the fact that this federal regulation is not expressly or implicitly incorporated in any California statute or in the IWCorderat issue in that case, Order 9. Indeed, the Monzon Court acknowledgedthatits decision was not founded upon the express provision in IWC Order9 that allowed for written agreements to exclude sleep time for ambulance drivers and attendants. Instead, Monzon concluded that “[g]iven the similar purpose behind the FLSA andthe wageorders... although the definitions of ‘hours worked’ are not the same,they are parallel, and therefore federal precedentis entitled to some deference.” (Monzon, 224 Cal.App.3d at 45- 46.) Thus “federal precedent” in the form of 29 C.F.R. part 785.22 served as the underpinning for the holding that agreements to exclude “sleep time” from otherwise compensable “hours worked”are enforceable under California law. Monzon reachedthis holding despite Labor Code section 1194, which provides: “Notwithstanding any agreement to work for a lesser wage, any employee receivingless than the legal minimum wageorthe legal overtime compensation applicable to the employeeis entitled to recoverin a civil action the unpaid balanceofthe full amountofthis minimum wageor overtime compensation.” An opportunity to reconsider Monzonin light of this Court’s subsequentdecisions on whenit is appropriate, and whenitis not, to apply federal wage andhourregulations to California law, was presented to the Court ofAppeal in Seymore v. Metson Marine, Inc., supra, 194 Cal.App.4th 361. The Court there acknowledged that“the [Monzon]court readinto the state regulation defining compensable hours workedthe provisions ofthe federal regulation, 29 Code of Federal Regulationspart 785.22,” and that “the exclusion of sleep time from compensable hours worked by 24-hour employeesis implied from the termsofthe federal regulation.” (Seymore, 194 Cal.App.4th at 382.) But there is no indication whatsoeverthat the Seymore plaintiffs argued that in light of subsequent Supreme Court authority, Monzon must now berejected as wrongly decidedin that this federal regulation should not have been importedinto state law. Noris there any indication that the Seymore Court gave any independent consideration to the question of whether Monzonisstill good law. Instead,plaintiffs in Seymore merely soughtto distinguish Monzon by arguing that its holding waslimited to ambulance drivers and attendants, and hadnoapplicability to other types of transportation workers covered by IWC Wage Order 9. The Court was unpersuaded by this argument, observing that Wage Order 9's special provision regarding ambulance drivers and attendants was notthe basis for the Monzon holding. (/d., at 381-382.) Thus, without giving any consideration to the significance of subsequent Supreme Court jurisprudence, the Seymore Court ruled that Monzon wascontrolling as to the enforceability of agreements to exclude eight hours of“sleep time” from otherwise compensable “hours worked.” The decision below is of enormoussignificance in that for the very first time, an appellate court was presented with the question ofwhether Monzon’s holding as to the enforceability of such agreements to exclude “sleep time” from otherwise compensable “hours worked” remains good law in light of this Court’s subsequentdecisions in Ramirez, Morillion, and Martinez. As the Court of Appeal explainedin its decision below: “The Class further contends, and persuadedthetrial court, that application of[the Monzon]ruleto the instant case would violate the Supreme Court’s proscription against adoption of federal regulationsto eliminate protection to California employees.” (Slip Op., attached hereto,at 27.) Rejecting this contention, the Court ofAppeal explained: “We agree with the courts in Seymore and Monzonthat becausethe state and federal definitions of hours worked are comparable and havea similar purpose, federal regulations and authorities may properly be consulted to determine whethersleep time may be excluded from 24-hourshifts.” (Slip Op., at 31.) The Court madeclear its intention for this decision to apply to workers covered byanyofthe TWC’s wageorders: “Further, we find this determination to be applicable to all wage ordersthat include essentially the same definition of “hours worked”found in Wage Order No.9, including Wage OrderNo. 4.” (/d.) The decision below therefore authorizes agreements to exclude “sleep time” from otherwise compensable hours worked by a wide range of employees who work 24-hourshifts, including not just the security guards covered by Wage Order4 in this case, but also, personal attendants covered by Wage Order 15 whoprovide care andassistanceto the disabled or to persons of advanced age,firefighters at oil refineries or other manufacturing plants covered by Wage Order 1, emergency medical technicians covered by Wage Order 9, etc. Absent review, this decision will deprive tens of thousands of California workers the right to compensation for eight hours of every 24-hour shift worked. Review is needed because the decision below leaves unresolved the conflict between Monzon and this Court’s subsequent decisions in Ramirez, Morillion, and Martinez. The Court of Appeal’s focus on whether “the state and federal definitions ofhours worked are comparable and have a similar purpose” cannot be reconciled with the methodology adopted bythis Court for analyzing whether federal regulations may be applied in determining whether time is compensable under California law: “[W]e do not believe the similarity or differences between the two definitions of ‘hours worked’is dispositive of whetherplaintiffs’ compulsory travel time is compensable understate law.” (Morillion, 22 Cal.4th at 590.) Instead, where a federal statute or regulation excludescertain time or activity from compensable time or activity under the FLSA, thetest is (1) whether the Labor Code or the IWCorders contain express languagesimilar to the provisions of the federal statute or regulation that exclude such time or activity from compensable hours worked, andif not, (2) whetherthere is evidence of IWCintent to adopt the federal law or regulation in determining whetherthe timeor activity is non-compensable understate law. (/d., at 590-592.) “Absent convincing evidence of the [WC’s intent to adopt the federal standard for determining whethertime spent traveling is compensable understate law, we decline to import any federal standard, which expressly eliminates substantial protections to employees, by implication. Accordingly, we do not give much weightto the federal authority on which the Court ofAppeal relied.” (/d., at 592.) This case presents an opportunity to resolve — once andforall — whether the federal authority that allows for agreements to exclude eight hours of sleep time from otherwise compensable hours worked — 29 C.F.R. part 785.22 — may be imported into California wage and hour law. No published decision on “sleep time” — not Monzon, not Seymore, and not the decision below — ever resolved this question through application ofthetest set forth in Ramirez, Morillion and Martinez. As time passes, Monzon, though wrongly decidedin light of this Court’s subsequent jurisprudence, takes on the trappings of “longstanding authority.” Each subsequent decision, first Seymore, and now the decision below simply parrots the holding ofMonzon,thereby frustrating this Court’s efforts to effectuate IWCregulations that provide greater protections to employees than corresponding federal law. The time has comefor this Court to step in and put a decisive stop to the lower courts’ adherenceto federal regulations that are inconsistent with California’s more protective wage and hour provisions. Review is appropriate, warranted and necessary to prevent further erosion of this State’s more protective labor standards, and to ensure that the proper approach — the test set out in Ramirez, Morillion, and Martinez, is followed in any determination of the applicability of federal regulations to state wage and hourlaw. STATEMENT OF THE CASE A. Trial Court Proceedings Defendants and Appellants CPS Security Solutions, Inc., CPS Construction Protection Security Plus, Inc., and Construction Protective Services, Inc. (collectively “CPS”) provide security guards for building construction sites throughout California. Many of the security guards employed by CPSare designated “trailer guards” as they are required to spend thenight at their assigned jobsites in CPS-provided residential-type trailers, in order to be available to investigate alarms and other suspicious circumstances andto prevent vandalism and theft. During these nighttime periods, CPS considersthe trailer guards “on call,” and generally compensates them only for time spent actively conducting investigations. (Slip Op., at 1.) In 2008, two class action lawsuits were filed against CPS, seeking damagesforfailure to pay minimum wage and overtime compensation in violation of California regulations and Labor Codeprovisions, including IWC Wage Order4. Plaintiffs also asserted other related claims, including a claim for declaratory relief, seeking a determination whether CPS’ on-call compensation policy was unlawful under applicable statutes and regulations. CPS cross-claimed for declaratory relief, also seeking a judicial determination of the lawfulness ofits on-call policy. (Slip Op., at 1-2.) The court consolidated the cases andcertified the class to includeall persons whoare or were employed as “trailer guards” on an hourly basis by CPS, within the State of California, during the period oftime from April 11, 2004 to the date ofjudgment, who, because of a company-widepolicy conceming on-call time for trailer guards, were not compensated for on-call time spent at the trailer site. (Slip Op.,at 1.) The parties filed cross-motions for summary adjudication on the declaratory relief causes of action,filing a joint statement of undisputed facts in which they stipulated to the following, as set out in the Court of Appeal opinion at pages 4-6: CPS contracts with its customers, construction companiesat building sites throughout California, to provide security services. These services generally include the presence of a security guard from 3:00 p.m.to 7 a.m., Mondaythrough Friday, and for 24 hours on Saturday and Sunday. Prior to being hired by CPS, eachtrailer guard was required to sign an “On-Call Agreement.” The On-Call Agreements designated eight hours 10 per day, generally from 9:00 p.m. to 5:00 a.m., as “On-Call” hours. Under these Agreements, eachtrailer guard agreed that the trailer home washis or her “residence,” and to “reside during [his or her] employmentin the trailer homeprovided by the Companyfor[his or her] exclusive use.” These trailers ranged in size from 150 to 200 square feet. The trailers had many of the amenities of home, including a living area, a bed, a functioning bathroom and kitchen, heat, and air-conditioning. Thetrailers were equipped with locks. Trailer guards were allowed to keep personal items in their trailers, including clothing, books, magazines, televisions, radios, and personal computers, and to engagein personal activities while on-call in the trailers, including sleeping, showering, cooking, eating, reading, watching television, listening to the radio, and surfing the internet. However, children, pets and alcohol were not permitted on the premises, and adult visitors were permitted only if CPS’ client permitted it. CPS’s business model,as stipulated,“is based on the idea that construction sites should have an active security presence during the morning and evening hours when construction workersarrive and depart the site, but that theft and vandalism during the night and weekend hours cab be deterred effectively by the mere presence of a security guard in a residential trailer.” Consequently, on weekdaysthe trailer guards were generally li scheduledto actively patrol the jobsites from 5:00 a.m. until 7:00 a.m. and from 3:00 p.m.until 9:00 p.m. For the eight hours from 7:00 a.m.until 3:00 p.m., on weekdays when construction takes place at jobsites, the trailer guards were free to leave the premises and do as they please. On weekends, trailer guards were on active patrol for 16 hours during which they were paid an hourly rate, from 5:00 a.m. to 9:00 p.m. For eight hours every day of the week, generally from 9:00 p.m. to 5:00 a.m., the trailer guards were considered to be on-call, which meant they had to be present on the jobsite or in the trailer, except as specified in the On-Call Agreements. Under the On-Call Agreements, if trailer guard wished to leave the jobsite during on-call hours, he or she was required to (1) notify a dispatcher, (2) provide information where the guard would be and for how long, and (3) wait for a reliever.to arrive. Thetrailer guards were not allowed to leave a jobsite before a reliever arrived. After the reliever arrived, the guard wasprohibited from traveling outside a 30-minute radius of the jobsite, and the guard wasrequired to carry a pageror radio telephone, and respond immediately to anycall. CPSdid not consider on-call time when calculating hours worked, and trailer guards were paid for on-call time onlyif: (1) a motion-activated alarm, noise, or other condition on the jobsite required investigation;or (2) 12 they had requested and were waiting for or had been denieda reliever. CPSpaid the guardsonly for the actual time spent conducting an investigation during the on-call period, unless the guard spent three or more hours engagedin investigations, in which case guard would be paid for the entire eight hours. Theparties further stipulated, for purposes ofthelitigation, that Wage Order 4 wasthe [WC wage order applicable to the trailer guards. (Slip Op., at 9.) In the course ofthelitigation, plaintiffs and CPS filed cross-motions for summary adjudication. The court grantedplaintiffs’ motion for summary adjudication and denied CPS’s motion,ruling that CPS’s on-call policy violated Wage Order 4. The court specifically found . that CPS’s level of control over the trailer guards during the on-call period wassufficient to bring the time within the applicable state law definition of “hours worked.” The court found support for this conclusion on the fact that the trailer guards were requiredto live in the trailer during the on-call periods, the fact that their geographical movements wereseverely restricted, and the fact that they could engagein only limited personalactivites. The court noted that the parties’ On-Call Agreements expressly allowed CPS “to retain significant control overthe [trailer guards],” by allowingit “to require the employeesto return to the work site and/or remain onsite.” The 13 fact that CPS’s business model was “premised on the notion that theft and vandalism during the night and weekend hours can be deterred by the mere presenceofa security guard in a residentialtrailer,” further confirmed the court’s finding that “the ‘on-call’ time is spent predominantly for the benefit of the employer.” (Slip Op., at 9-10.) Thetrial court proceeded to reject CPS’s contention that on the weekend days, whenthetrailer guards were on duty 24 hours, eight hours could be allocated to sleep time and excluded from compensation. Thetrial court distinguished Monzon and Seymoreon the groundthat those cases arose undera different wage order, and found that applying the rule announced in those cases, predicated upon 29 C.F.R. part 785.22, would improperly “import a [less protective] federal standard” into Wage Order4. (Slip Op., at 10.) The trial court relied on Ramirez, Morillion, and Martinez in reaching this conclusion. Plaintiffs then sought a preliminary injunction preventing CPS from violating Wage Order 4, Labor Code § 1194, and any other applicable regulations and statutory provisions by refusing to pay the trailer guards for on-call time. The court granted the request and entered an order enjoining CPSfrom (1) “continuing to violate [Wage Order4], ... and Labor Code § 1194 through CPS’s application of an unlawful ‘on-call’ policy for trailer 14 guards, which does not compensateforall time spent bythe trailer guards at the worksites during ‘on-call’ time, which is generally between 9:00 p.m. and 5:00 a.m., and is specified in each “on-call” agreement between the employer and eachtrailer guard,” and (2) “failing to pay Californiatrailer guardsfor all hours worked during ‘on-call’ time.” CPS appealed. (Slip Op., at 12.) B. The Court ofAppeal Decision Theissue presented to the Court ofAppeal, in the wordsofthe decision, “is whether the hours the trailer guards spendin thetrailers between 9:00 p.m. and 5:00 a.m. should be construed as ‘hours worked.’ The Court ofAppeal beganits analysis of this issue by noting that the term “hours worked”is defined in Wage Order 4 (and indeed, in every one of the IWC’s industry and occupation wageorders) as “the time during which an employee is subject to the control of an employer, and includesall the time the employee is suffered or permitted to work, whether or not required to do so.” (Slip Op., at 15.) CPS advanced two groundsfor its argumentthat these eight hours pernight are properly excluded from “hours worked.” First, according to CPS,the trailer guards are merely “on-call,” free to engage in personal activities and not actively engaged in work unless and until an alarm sounds 15 or they are otherwise actively engaged in an investigation. Second, according to CPS, evenifthe “on-call” time is deemed to constitute “hours worked,”it is excludable as “sleep time” and thus, need not be compensated. (Slip Op., at 15-16.) The Court of Appeal rejected CPS’s first contention, concludingthat the eight hour period of “on-call” time constitutes “hours worked” under California law. The Court’s detailed analysis of this issue is found at pages 16-27 of the Slip Opinion, attached hereto. To summarize, the Court concludedthat during the on-call hours, the trailer guards must be present at the constructionsite and is not free to leave at will; rather, the guard may leave only if and whena reliever is available. Furthermore, by their presenceonsite during the on-call hours, the guards perform an important function for their employerandits clients: they deter theft and vandalism. The Court thus found that “the restrictions on the on-call time are primarily directed toward the fulfillment of the employer’s requirements,” and that “the guards are substantially restricted in their ability to engage in private pursuits.” (Slip Op., at 21.) In determining the degree to which CPS’s trailer guards were able to engage in private pursuits during on-call time, the Court of Appeal followed the seven-factor test set out in Gomez v. Lincare, Inc. (2009) 173 16 Cal.App.4th 508, 523, namely: (1) whether there was an on-premisesliving requirement; (2) whether there were excessive geographicalrestrictions on the employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whethera fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether the use of a pager could easerestrictions; and (7) whether the employee had actually engaged in personalactivities during on-call time. (Slip Op., at 18.) The Court concludedthat the majority of these seven factors “favors a finding that during the on-call period, the trailer guards are significantly limited in their ability to engage in personalactivities.” (Slip Op., at 21.) The Court explained: “They are required to live on the jobsite. They are expected to respond immediately, in uniform, when an alarm soundsor they hear suspiciousactivity, During the relevant hours, they are geographically limited to the trailer and/or the jobsite unlessa reliever arrives; even then, they are required to take a pageror radio telephone so they maybecalled back; and they are required to remain within 30 minutes ofthe site unless other arrangements have been made. They maynoteasily trade their responsibilities, but can only call for a reliever and hope onewill be found.” (Slip Op., at 22.) 17 “Most importantly, the trailer guards do not enjoy the normal freedomsof a typical off-duty worker, as they are forbidden to have children, pets or alcohol in the trailers and cannot entertain or visit with adult friends or family without special permission. On this record, we conclude the degree of control exercised by the employer compels the conclusion that the trailer guards’ on-call time falls under the definition of “hours worked” under California law.” (Slip Op., at 22.) In reaching this conclusion, the Court ofAppeal expressly rejected CPS’s argumentthat another federal regulation, 29 C.F.R. part 785.23, should be applied in deciding whether the on-call hours constitute “hours worked.” That federal regulation provides: “An employee whoresides on his employer’s premises on a permanentbasis or for extended periods of time is not considered as workingall the time he is on the premises. Ordinarily, he may engage in normalprivate pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from alli duties when he may leave the premises for purposesofhis own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreementofthe parties which takes into consideration all of the pertinent facts will be accepted.” (Slip Op.,at 24-25.) 18 In rejecting CPS’s request to import this regulation, the Court of Appeal wrote: “[A]s our Supreme Court has madeclear, ‘[a]bsent convincing evidence ofthe IWC’sintent to adopt the federal standard,’ we must ‘decline to import any federal standard, which expressly eliminates substantial protection to employees, by implication.’ (Morillion, supra, 22 Cal.4th at p. 592.) Likewise, we maynotuse federal authorities and regulations to construe state regulations where the languageorintent of state and federal law substantially differs, and the federal law would provide less protection to California employees. (Ramirez v. Yosemite Water Company, supra, 20 Cal.4th at p. 798.) CPS points to no provision of Wage Order No.4 containing languagethat parallels that of 29 C.F.R. part 785.23, or to any evidence that the IWC intended to adopt the federal standard for security guards.... Accordingly, we conclude that applying part 785.23 to California employees in the manner CPS urges would substantially impair the protections provided by California law.” (Slip Op., at 26-27.) The Court ofAppeal took a very different view of the appropriateness of importing federal regulationsin its determination ofthe compensability of the eight hours of on-call time during the trailer guards’ 24-hour weekendshifts, ruling that CPS could exclude 8 hours of “sleep 19 time” from the otherwise compensable “hours worked” on 24-hour shifts, provided the guardsare afforded a comfortableplace to sleep, the time is not interrupted, the guards are compensatedfor any period ofinterruption, and on any day they do notreceive at least five consecutive hours of uninterrupted sleep time, they are compensated for the entire eight hours. (Slip Op., at 33.) The Court ofAppeal basedthis holding on Monzon and Seymore, citing those twocasesfor the proposition that “California courts have held that when an employee works a 24-hourshift, the employee and employer may exclude, by agreement, up to eight hours for ‘sleep time.’” (Slip Op., at 27.) Of course, both Monzon and Seymore reached these holdings by importing the provisions of29 C.F.R. part 785.22 into California law. The Court ofAppeal explained: “We agree with the courts in Seymore and Monzonthatbecausestate and federal definitions ofhours worked are comparable andhavea similar purpose, federal regulations and authorities may properly be consulted to determine whether sleep time may be excluded from 24-hourshifts.” (Slip Op., at 31.) Thus, despite the fact that neither the Labor Code nor IWC Order4 contain any provision similar to 29 C.F.R. part 785.22 allowing for the enforcement of agreements to exclude“sleep time”from otherwise compensable hours worked, and absent any discussion of whether the IWC ever manifested any intent to 20 adopt this federal regulation, the Court ofAppeal announcedits disagreementwiththetrial court’s finding that “application of[the] rule” announcedin Seymore and Metson “would violate the Supreme Court’s proscription against adoption of federal regulations to eliminate protection to California employees.” (Slip Op., at 27.) The Court of Appeal noted that “[t]here are sound reasonsfor permitting an employer who engages an employee to work a 24-hourshift and compensate him or her for 16 of those hours to exclude the remaining eight hours for sleep time, as long as the time is uninterrupted, a comfortable place is provided, and the parties enter into an agreement covering the period. 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, which should generally include considerable overtime, ensures that employees receive an adequate wage.... As the employeeis being adequately compensatedforall his or her waking hours, there is no need to require additional compensation for the period when the employee is asleep.” (Slip Op., at 31.) There is nothing in the decision that would suggest that the Legislature or the IWC ever madethis sort of policy determination to allow for agreements to exclude “sleep time” from time that would otherwise constitute compensable “hours worked.” 21 LEGAL DISCUSSION A. The Test for Determining Whether A Federal Regulation Under the FLSA Applies to California Wage and Hour Law In deciding whether California law allows for the enforcement of an agreementto exclude eight hours of “sleep time” from time that would otherwise constitute compensable “hours worked”in the absence of such an agreement, the determinative consideration is not whether federal and California wage and hour laws havea similar definition of “hours worked.” Monzon, Seymore, and now the Court of Appeal decision below reach the wrong answerby posing the wrong question. As this Court explained in Morillion, “we do not believe the similarity or differences between the two definitions of ‘hours worked’ is dispositive of whetherplaintiffs’ compulsory travel time is compensable understate law. Instead, we find that the Portal-to-Portal Act, which expressly and specifically exempts travel time as compensable activity under the FLSA (29 U.S.C. § 254) should be the focus of our comparative analysis.” (Morillion, 22 Cal.4th at 590.) “Absent convincing evidence of the IWC’sintent to adopt the federal standard for determining whethertime spent traveling is compensable under state law, we decline to import any federal standard, which expressly eliminates substantial protections to employees, by implication.” (/d., at 22 592.) Asthis Court has repeatedly explained, “our departure from federal authority is entirely consistent with the recognized principle that state law may provide employees with greater protection than the FLSA.” (/d.) The “TWC’s wageorders, although at times patterned after federal regulations, also sometimes provide greater protection than is provided underfederal law in the [FLSA]....” (Ramirez, 20 Cal.4th at 795.) “Courts must give the IWC’s wage orders independenteffect in order to protect the commission’s delegated authority to ... provide greater protection to workers than federal law affords.” (Martinez, 49 Cal.4th at 68.) “Indeed, ‘federal law does not control unlessit is more beneficial to employees than the state law.’” (Morillion, 22 Cal.4th at 594.) Here, the focus of an analysis comparing federal and state law must be the federal regulation that permits agreements to exclude upto eight hours of sleep time from hours worked during a 24-hourshift, 29 C.F.R. part 785.22. The analysis, which was not undertaken by the Court of Appeal, below, must look to whether any express provisions of the Labor Code or applicable IWC order adopt the federal regulation, andifnot, whetherthere is any indication of intent by the Legislature to the IWC to makethat regulation applicable to California law. If not, Ramirez, 23 Morillion, and Martinez compelthe conclusion that the more protective provisions of California law cannot be undercut by less protective federal regulation. B. The Federal Regulation Allowing Agreements to Exclude “Sleep Time” From Otherwise Compensable “Hours Worked” Has Not Been Expressly Adopted By Any California Law or Wage Order The only IWCorders that contain any language that touch on the subject of 29 C.F.R. part 785.22 — agreements to exclude “sleep time” from otherwise compensable “hours worked” ~ are Wage Orders 5 and 9 (covering the Public housekeeping industry, and the transportation industry, respectively), and even there, there is a glaring dissimilarity between the state and federal regulations, in that these two Wage Orders allow for such agreements only for ambulance drivers and attendants, and only where such agreements are in writing, and only provide for an exemption from the otherwise applicable requirements of daily overtime — i.e., the “sleep time” for such employees wouldstill be counted as hours worked for minimum wage and weekly overtime purposes. (See IWC Order 5-2001, § 3(G), and Order 9-2001, § 3(K).) No other IWC wageordercontains any provision whatsoever regarding agreements to exclude of “sleep time” from “hours worked”for 24 any purpose whatsoever.’ Noris there any provision in the Labor Code regarding agreements to exclude “sleep time” from “hours worked.” And the only provision in the Labor Code or in the IWC orders allowing for the FLSAto serve as a basis for construing “hours worked”understate law is found at [WC Orders 4 and 5 butis explicitly limited to the “health care industry” as follows: “Within the health care industry the term ‘hours worked’ meansthe time the employeeis suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act.” (IWC Order 4-2001, § 2(K); Order 5-2001, §2(K).) By its own terms, this special provision incorporating the FLSA doesnot apply to any employees other than those who workin the “health care industry” and who are covered by Wage Orders 4 or 5. As this Court madeclear, in declining to import a portion of | WageOrder5's definition of “hours worked”contains the following language, whichis not found in any other wageorder:“in the case of an employee required to reside on the employment premises,that time carrying out assigned dutiesshall be counted as hours worked.” (IWC Order 5-2001, § 2(K).) This specific language has been construed to allow the employer to not compensate such employeefor time during which the employeeis restricted to the premises butis not carrying out any work duties. (Brewerv. Patel (1993) 20 Cal.App.4th 1017; Isner v. Falkenberg/Gilliam & Associates, Inc. (2008) 160 Cal.App.4th 1393.) This is an exception to the general definition of “hours worked,” under which time during which the employeeis restricted to the employmentpremises, even if the employeeis free to eat, read, watchtelevision, or sleep during such time, is considered “time during which an employeeis subject to the control of an employer,” so as to constitute “hours worked.” (Aguilar v. Associationfor Retarded Citizens (1991) 234 Cal.App.3d 21, 30-31; Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557.) 25 the FLSA,the Portal-to-Portal Act, to the state law determination of whether compulsory travel time constitutes “hours worked”: “Finally, we note that where the IWC intended the FLSAto apply to wageorders, it has specifically so stated.” (Morillion, 22 Cal.4th at 592, citing to special health care industry provision in Wage Orders 4 and 5.) C. There Is No Indication That the [WC Had Any Intent to Make the Federal Regulation Allowing For Agreements to Exclude “Sleep Time” From Otherwise Compensable “Hours Worked” Applicable to California Wage and Hour Law Asfor indicators of the [WC’s intent, the [WC’s adoption, in 1976, ofthe special provision for ambulance drivers and attendants in section 3 of Wage Orders 5 and 9 belies any notion that the [WC ever intended that 29 C.F.R. part 785.22 apply to any of its wage orders. Quoting from the Statementas to the Basis that was issued by the IWC for Wage Order 9-80, Monzonnotedthat the special provision for ambulancedrivers and attendants, then found at Section 3(G) of Wage Order 9-80 (now located at Section 3(K) ofthe current version of that wage order, 9-2001), “was added in 1976 when [the] IWC‘recognized the unique need for 24-hour coverage by ambulance drivers and the special circumstances under which most ambulance driver work, and allowed relaxation of daily overtime 26 requirements for such drivers under certain protective conditions.’” The IWC would have had no needto adopta special provision allowing for the “relaxation of daily overtime requirements for [ambulance] drivers”if it believed that 29 C.F.R. part 785.22 applied to state wage and hour law. If the federal regulation applied, then any agreement, written or otherwise, between 24 hour-shift ambulance drivers and their employers (indeed, between any 24-hourshift employees and their employers) would be sufficient to exclude “sleep time” from otherwise compensable “hours worked”for any purpose, notjust for the purpose of calculating hours worked for daily overtime. If the federal regulation gets imported into California law, such “sleep time” hours are not compensable for minimum wagepurposes, weekly overtime purposes and daily overtime purposes. In short, if the IWCreally believed the federal regulation applied, the adoption of the special provision for ambulance drivers and attendants would have served no purpose whatsoever. D. The Court ofAppeal’s Stated Policy Reasons For Enforcing the Agreements to Exclude “Sleep Time” From “Hours Worked” Improperly Intrude on The IWC’s Quasi-Legislative Authority The policy considerations set out in the decision below strongly echo the very same considerations expressed by the court of appeal, and rejected 27 by this Court, in Morillion. There, the court of appeal observed“Since the commute was something that would have hadto occur regardless of whetherit occurred on [the employer’s] buses, and [plaintiffs] point to no particular detriment that ensued from riding [those] buses, compensating employees for this commute time would not make sense, as a matter of policy.” (Morillion, at 587.) This Court rejected that policy argument for two reasons. First, quoting from its prior decision in Industrial Welfare Commission v. Superior Court (1980) 27 Cal.3d 690, 702, the Court stated: “TR]eview of the [WC’s wageordersis properly circumscribed.... A reviewing court does not superimpose its own policy judgment upona uai- legislative agency in the absence ofan arbitrary decision.” (Morillion,at 587.) Indeed, this Court has repeatedly held that 'WC wage orders “are to be entitled to the same dignity as statutes”; in other words, they are “entitled to ‘extraordinary deference, both in upholding their validity and in 999upholding their specific terms.’” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1027, quoting Martinez, supra, 49 Cal.4th at 61.) Second, this Court, in Morillion, rejected the lower court’s policy argument because “it suffers from the court’s failure to distinguish between travel time that the employer specifically compels and controls, as in this 28 case, and an ordinary commute that employees take on their own. When an employer requires its employees to meet at designated places to take buses to work and prohibits them from taking their own transportation, these employeesare ‘subject to the control of an employer,’ and their time spent traveling on buses is compensable as ‘hours worked.’” (Morillion, 22 Cal.4th at 587.) Here, in the decision below,the court of appeal’s policy justification for excluding “sleep time” from “hours worked” — “most employees would be sleeping for a similar period every day, whether on duty or not” — likewise suffers from the failure to distinguish between eight hours of “uncontrolled sleep time” and eight hours where the employee is subject to the employer’s control. This control is manifested in numerous ways — the employeeis prohibited from sleeping anywhere but the on-site trailer, the employeeis prohibited from having friends or family visit or stay on the premises, the employeeis denied the right to keep a pet on the premises, and the employee is required to wake up and immediately respond to any alarm or other disturbance. CONCLUSION When Monzon wasdecidedin 1990, that court did not have the benefit of this Court’s subsequent repeated warnings in Ramirez, Morillion, 29 and Martinez against relying on less protective federal regulations or interpretations to construe state wage and hourregulations. Within the past twoyears, there have been two decisions — Seymore and now the decision of the Court ofAppeal below — that followed the “long established”holding in Monzon and disregarded the contrary teachings of this Court in Ramirez, Morillion, and Martinez, to improperly import a less protective federal regulation allowing for agreements to exclude “sleep time” from otherwise compensable “hours worked.” Unless review is granted, Monzon and its more recent progeny, though wrongly decidedin light ofRamirez, Morillion, and Martinez, will continue to confound federal and state wage and hourlaw,and stand in the way ofeffectuating the [WC’s authority to provide greater protections to California workers than federal law affords. For this reason, and for all of the reasons set forth above, we respectfully ask this Court to grant this petition for review. Dated: August 12, 2013 Cathe L. Caraway-Howard Law Offices of Cathe L. Caraway-Howard Miles E. Locker Locker Folberg LLP lolEb b—_ Miles E. Locker Attorneys for Tim Mendiola,et al. 30 CERTIFICATION OF WORD COUNT Thetext of this Petition for Review consists of 7,215 words as counted by the Corel Word Perfect X4 word processing program used to generate this document. YALELid Date: August 12, 2013 /\YA Miles E. Locker Attorney for Plaintiffs and Appellants 31 Filed 7/3/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR TIM MENDIOLAet al., B240519 (Los Angeles County Plaintiffs, Cross-defendants Super. Ct. No. BC388956 c/w and Respondents, BC391669) Vv. CPS SECURITY SOLUTIONS,INC., et al., Defendants, Cross-complainants and Appellants. APPEAL from an order of the Superior Court of Los Angeles County. Jane L. Johnson, Judge. Reversedin part andaffirmedin part, with directions. Blank Rome and Howard M.Knee; Jim D. Newman for Defendants, Cross- complainants and Appellants. Law Offices of Cathe L. Caraway-Howard for Plaintiffs, Cross-defendants and Respondents. Appellants CPS Security Solutions, Inc., CPS Construction Protection Security Plus, Inc. and Construction Protective Services, Inc. (collectively “CPS”) provide security guards for building construction sites throughout California. A numberofthe security guards employed by CPSare designated “trailer guards.” They are thus described because in addition to their regular patrols, they are expected to spend the nightat their assigned jobsites in CPS-providedresidential- typetrailers, in order to be available to investigate alarms and other suspicious circumstances and to prevent vandalism and theft. During these nighttime periods, CPSconsiders the trailer guards “on call,” and generally compensates them only for the time spent actively conductinginvestigations.’ In 2008, two lawsuits were filed against CPS,alleging violations of California law governing minimum wage and overtime compensation and seeking to represent the sameclass of California trailer guards. Thetrial court consolidated the cases andcertified the class.” Currently on appealis the court’s order granting a preliminary injunction requiring CPS to compensatetrailer guards for all on-call time spentin the trailers. Atissue are two distinct periods: weekdays, whenthetrailer guards are onpatrol eight hours and on call eight hours, and weekends, when theyare on patrol 16 hours and on call eight hours. We conclude that CPS must compensatethe trailer guards for the nighttime hours spent on the jobsites during the week,asthetrial | There are limited exceptions, as will be explained below. The class was defined as “[a]ll persons who are or were employedas ‘Trailer Guards’ (also known as ‘In-Residence Security Officers’) on an hourly basis by [CPS], within the State of California, during the period of time from April 11, 2004 to the date of judgment, who, because of a company[-]wide policy concerning [o]n-[c]all time for Trailer Guards, were not compensated for [o]n-[c]all time spent at the trailer site.” There are 1,725 membersofthe certified class who did not opt out of the lawsuit. Respondents Tim Mendiola, Policarpio Mas, Rodolfo Tablang, Floriano Acosta, Emmanuel Gonzaga, and Rogelio Rombaoa,the plaintiffs in the consolidated actions, were appointed class representatives. (Respondents will be referred to as “the Class.”) court ruled. However, in accordancewithsettled principles of California law, we conclude that CPS is permitted to deduct eight hoursfor sleep time on those weekend days whenthetrailer guards are on duty for 24 hours. Accordingly, we affirm in part and reversein part. FACTUAL AND PROCEDURAL BACKGROUND A. Complaints and Cross-Complaint The operative complaint sought damagesforfailure to pay minimum wage and overtime compensation in violation of California regulations and Labor Code provisions, including Wage Order No. 4.° It also asserted other related claims, including a claim for declaratory relief, seeking a determination whether CPS’s on- call compensation policy was unlawful underthe applicable statutes and regulations. CPS cross-claimed for declaratory relief, also seeking a judicial determination of the lawfulness ofits on-call policy. 3 Aswill be discussedin greater detail, wage and hour claimsare “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 bythe [Industrial Welfare Commission (IWC)].” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026.) The IWC, a state agency, was authorized by the Legislature and the California Constitution to formulate regulations, known as wage orders, which establish minimum wages, maximum hours and standard conditions of employmentfor the various industries and occupations in the state. (Ibid.; Reynoldsv. Bement (2005) 36 Cal.4th 1075, 1084, abrogated in part on other grounds in Martinezv. Combs (2010) 49 Cal.4th 35; Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 701; Cal. Const., art. XIV, § 1.) Although the IWC was defundedin 2004,its wage orders remain in effect. (Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 43; California Correctional Peace Officers’ Assn. v. State ofCalifornia (2010) 188 Cal.App.4th 646, 651.) Wage Order No.4 is more formally referred to as “Wage Order No. 4-2001,” but we adopt the nomenclature used by the parties for this andall other specific wage orders discussedherein. B. Cross Motionsfor Summary Adjudication 1. Stipulated Facts Concerning Trailer Guards Theparties filed cross-motions for summary adjudication on the declaratory relief causes ofaction,filing a joint statement of undisputed facts in which they stipulated to the following: CPS contracts with its customers, construction companiesat building sites throughout California, to provide security services. The packageof services generally includes the presence of a security guard from 3:00 p.m. to 7:00 a.m., Monday through Friday, and for 24 hours on Saturday and Sunday.* Prior to being hired by CPS,eachtrailer guard was required to sign a “Designation of Personal Time for In-Residence Guard,” also referred to as an “On-Call Agreement[].” The On-Call Agreements designated eight hours per day, generally from 9:00 p.m. to 5:00 a.m., as “On-Call” hours. Under these Agreements, each trailer guard agreed that the trailer home washis or her “residence,” and agreed to “reside during [his or her] employmentinthetrailer homeprovided by the Companyfor[his or her] exclusive use.” Those prospective hires who did not agree to the terms and conditions of employmentasa trailer guard were offered positions as hourly guards, when available. Thetrailers provided by CPSrangedin size from 150 to 200 squarefeet. Thetrailers had many of the amenities ofhome, includinga living area, a bed, a functioning bathroom andkitchen,heat, and air conditioning. Thetrailers were equipped with locks, and only the assigned trailer guard and CPS maintenancestaff ‘ Theparties 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 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 residentialtrailer.” had the keys. Trailer guards were allowed to keep personal itemsin theirtrailers, including clothing, books, magazines, televisions, radios, and personal computers, and to engage in personalactivities while oncall in thetrailers, including sleeping, showering, cooking, eating, reading, watchingtelevision,listening to the radio, and surfing the internet. However, children, pets, and alcohol were not permitted on the premises, and adult visitors were permitted only if CPS’s client permittedit. On weekdays,trailer guards were generally scheduled to actively patrol the jobsites from 5:00 a.m.to 7:00 a.m. and from 3:00 p.m. to 9:00 p.m.(a total of eight hours).? On weekends,trailer guards were on active patrol from 5:00 a.m.to 9:00 p.m. (16 hours). During these times, they were paid an hourly rate. Foreight hours every day, generally 9:00 p.m.to 5 a.m., the trailer guards were considered to be on call, which meantpresent on thejobsite or in the trailer, except as specified in the On-Call Agreements. Under the On-Call Agreements,if a trailer guard wishedto leave the jobsite during on-call hours, he or she was required to (1) notify a dispatcher, (2) provide information as to where the guard would be and for how long, and (3) wait for the relieverto arrive.° After leaving the jobsite, the guard was required to remain within a 30-minute radius and carry a pagerorradio telephone. If called during that time, the guard was required to respond immediately. Thetrailer guards were not allowed to leave a jobsite before a reliever arrived. If no reliever was available, CPS had the right to order a trailer guard to remain at the jobsite, even if the trailer guard had an emergency. CPS did not consider on-call time when calculating hours worked,andtrailer guards were paid for on-call time only if: (1) 5 Between 7:00 a.m. and 3:00 p.m.(eight hours) on weekdays, when construction takes place on the jobsites, the trailer guards are free to leave and doastheyplease. 6 Therelievers are paid an hourly rate. an alarm, noise, motion or other condition on the jobsite required investigation; or (2) they were waiting for or had been denied a reliever.’ Wheninvestigating a suspicious condition, the trailer guards were paid for the actualtime spent conducting the investigation. Ifa trailer guard spent three or more hours engaged in investigations during the on-call period, the guard would be paidforthe entire eight hours. C. Prior Governmental Opinions Related to Trailer Guards The parties stipulated that state and federal governmental agencies had weighed in onthe legality of CPS’s on-call policy or the legality of predecessor policies with similar features as set forth below. 1. DLSE Beginning in 1996, the Division of Labor Standards Enforcement (DLSE) conducted an investigation and audit of CPS’s policy with regard to trailer guards and their nighttime posting, which wasthen designated “sleep time.”® Under the policy thenin place, trailer guards who wished to leave a jobsite were required to request permission 12 hours in advance to enable CPSto securea reliever, and werenotpaid if no reliever was available. In an April 1997 letter, the Chief Deputy Director of the Department ofIndustrial Relations and acting Labor y According to the stipulated facts, the trailer guards placed motion-sensitive alarms at strategic locations aroundthe site. The sensors were connectedto an alarm panelthat soundedeither in CPS’s dispatch centeror in the trailer. The trailer guards were required to be in uniform wheninvestigating alarmsor other suspicious activity. The stipulated facts did not state how oftentrailer guards were likely to spend actively engaging in investigations during the on-call periods. 8 The DLSE,headed by the Labor Commissioner,“is ‘empowered to enforce California’s labor laws, including [WC wageorders.’” (Reynolds v. Bement, supra, 36 Cal. 4th at p. 1084.) Commissioner noted that both DLSEandthe federal Department of Labor had concluded “hours worked”did not include “sleep time, meal times, and all other times during which the employeeis either free to leave the premisesoris free to ”? After review, the DLSE “flound]it appropriate toengage in private pursuits. extend this rule to the live-in security guards of [CPS]” under the facts presented, which includedthe fact that “the guards [CPS] employ[ed] were homeless and [the trailer was] essentially their only place of residence.” In 1999, the DLSEreversed its position on CPS’s “sleep time”policy. In November 2002, CPSfiled an action for declaratory relief seeking resolution ofthe policy’s legality, which the parties settled by entering into an October 14, 2003 Memorandum of Understanding (MOU)."’ Under the MOU, CPSagreed to change the terms of employmentforits trailer guards to include the following: “During the period between 9:00 p.m. and 5:00 a.m. (herein called ‘free time’) seven days a week, CPS shall implementa policy that provides the Trailer Guardsare free to leave the site at will during this free time, subject to the following conditions: (i) that the Trailer Guard will be on ‘stand-by’ and subject to being required to respondto alarmsand otherrecalls to work during those hours;(ii) that, before any Trailer Guard leaves the site, he/she shall call in to a central location and inform CPSthat he/she is leaving, how long he/she intends to be gone from thesite, and ? The letter noted that historically, the rule excluding sleep time had been narrowly applied to a handful of occupations, such as ambulance drivers and attendants, andthatit had recently been expanded to include mini-storage managers, mortuary attendants, and private firefighters under various wage orders thenin effect. ‘0 CPS’s cross-complaintalleged that its business plan came about when oneofits founders noticed a homeless construction laborer sleeping in a park and “saw an opportunity to solve two problemsat once”-- “[h]e decided to purchasea trailer and place it on the construction site, and he asked the day laborer if he wantedto live in the trailer... . The laborer agreed and theft and vandalism at the site immediately stopped.” 1 The MOUexpired October 1, 2007. where he/she intendsto be; (iii) that the Trailer Guard shall carry a pager or other device that will allow CPS to contact him/her;(iv) that, ifpaged or otherwise summoned, the Trailer Guard shall answerthe page or otherwise contact CPS immediately; and (v) that the Trailer Guard may be required to stay within a radius of distance that will allow him/herto return to the construction site within 30 minutes.” 2. DOL In 1997, CPS hadalso requested a formal opinion from the United States Department of Labor (DOL) concerningits sleep time policy. Ina letter dated March 24, 1997, the Assistant District Director ofDOL advised CPS“that its sleep time agreements complied with federal regulations and that the designated sleep time hours did not need to be compensatedas ‘hours worked,’ provided that the unpaid sleep time period was regularly scheduled and wasat least 5 hours and not more than 8 hours per day . . . [and] [the] employee [was] paid when ‘the unscheduled periods are so cut through with frequent work calls that this time is not his own.’” CPSsubsequently sought to determine whether DOL had changedits position and in 2010, sent a Freedom of Information Act request seeking records related to any DOL Wage and Hour Division investigations of CPS. CPS received 12 In addition, CPS was to pay the trailer guards at their regular rate of pay or at an overtimerate, if applicable, “for any time when, during free time, the Trailer Guard is required to respondto a pageby returning to the constructionsite to take care of a problem,” “for any free time spent by the Trailer Guard respondingto an alarm while on the site,” for the entire eight hours “[iJf the free time of any Trailer Guardis interrupted by work in response to pages and/or alarms to such an extentthat the Trailer Guardis unable to have at least 5 hours of consecutive, uninterrupted free time,” and during any period CPS required the trailer guard to remain at the jobsite “during all or any portion of his/her free time on any given occasion.” a copy of a 2009 memorandum,stating: “[T]he Department’s position has not changedsincethe last investigation. The employerisstill allowed to deductthe 8 hour sleep timeas longasthetrailer guards are able to get at least 6-hour[s] of sleep time per night,” and that “no further action would be taken by the Department based onthe fact that the Department’s position has not changed, and [CPS]is [facing] two class action lawsuits dealing with [a] similar issue.””? 3. Hearing Officer Decision In 2008,class representative Larioza filed a wage claim against CPS with the Labor Commissioner, seeking unpaid overtime wagesfor his on-call time." At an administrative hearing on September 3, 2009,Lariozatestified that he stayed on site during the on-call hours ““‘if he felt like it.”” The hearing officer issued a written order denying Larioza’s claim, concluding that he was not under the control ofhis employer during that time. D. Trial Court’s Summary Adjudication Order The trial court granted the Class’s motion for summary adjudication and denied CPS’s motion,finding that CPS’s on-call policy violated Wage Order No. 4 and Labor Codesection 1194.'° The court specifically found that CPS’s level of 8 Wenote that despite the memorandum’s statement that DOL’sposition had not changed, DOL summarized its position in 2009 as requiring an additional hour of uninterrupted sleep time. As explained in Reynolds v. Bement, supra, 36 Cal.4th at p. 1084,if “‘an employer fails to pay wages in the amount, time or mannerrequired by contractorbystatute,’” the employee “may seek administrative relief by filing a wage claim with the commissioner pursuant to a special statutory scheme codified in [Labor Code] sections 98 to 98.8.” (Italics omitted.) iS For purposesofthe litigation, the parties stipulated that Wage Order No. 4 was the IWC wageorder applicable to trailer guards. By its terms, Wage Order No.4 applies to (Fn. continued on next page.) 9 control overthe trailer guards during the on-call period wassufficient to bring the time within the applicable state law definition of “hours worked.” The court found support for its conclusion in the fact that the trailer guards were requiredto live in the trailer during the on-call periods, the fact that their geographical movements were severely restricted, and the fact that they could engage in only limited personalactivities. The court noted that the parties’ On-Call Agreements expressly allowed CPS“to retain significant control overthe[trailer guards],” by allowingit “to require the employeesto return to the work site and/or remain onsite.” The fact that CPS’s business model was “premised on the notion that theft and vandalism during the night and weekend hours can be deterred by the mere presence of a security guard in a residential trailer,” further confirmedthat “the ‘on-call’ time is spent predominantly for the benefit of the employer.” Thetrial court rejected CPS’s contention that on the daysthe trailer guards were on duty 24 hours, eight hours could be allocated to sleep time and excluded from compensation, a rule applied to 24-hour employees in Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16 (Monzon) and Seymorev. Metson Marine, Inc. (2011) 194 Cal.App.4th 361 (Seymore). The court distinguished those cases on the groundthat a different wage order -- Wage Order No.9, governing the transportation industry -- had been at issue, and foundthat applying the rule announced in those cases would “import a federal standard into ... Wage Order [No.]4....” “professional, technical, clerical, mechanical, and similar occupations,” including “ouards.” (Cal. Code Regs.,tit. 8, § 11040, subds. (1) and (2)(O).) Labor Codesection 1194 provides that “[nJotwithstanding any agreement to work for a lesser wage, any employeereceiving less than the legal minimum wageor the legal overtime compensation applicable to the employeeis entitled to recover in a civil action the unpaid balance of the full amount of this minimum wageor overtime compensation... .” 10 E. Preliminary Injunction The Class sought a preliminary injunction preventing CPS from violating Wage Order No. 4, Labor Code section 1194, and any other applicable regulations and statutory provisions by refusing to pay Trailer Guards for on-call time. The court granted the request and entered an order enjoining CPS from (1) “continuing to violate [Wage Order No.4], . . . and Labor Code § 1194 through CPS’s application of an unlawful ‘On-call’ policy for Trailer Guards, which doesnot compensate for all time spent by the Trailer Guardsat the worksites during ‘On- call’ time, which is generally between 9:00 p.m. and 5:00 a.m., and is specified in each ‘On-call’ agreement between the employer and each Trailer Guard” and (2) “failing to pay California Trailer Guardsfor all hours worked during ‘On-call’ time.”'® CPS appealed. DISCUSSION A. Standard ofReview An application for a preliminary injunction should be granted when the plaintiffis “likely to suffer greater injury from a denial of the injunction than the defendantsare likely to suffer from its grant,’” and whenthereis “‘a reasonable probability that the plaintiffs will prevail on the merits.’” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408, quoting Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) An order granting a preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6).) Thetrial court’s decision to grant a 16 In the sameorder, the court also “certifie[d] pursuant to Code of Civil Procedure § 166.1, that the Court’s determination that CPS’s ‘On-call’ policy violates Wage Order 4, [citation], and Labor Code section 1194 presents a controlling issue of law as to which there are substantial groundsfor difference of opinion, appellate resolution of which may materially advance the conclusionof the litigation.” 11 preliminary injunction is generally reviewed under an abuseofdiscretion standard. (Cinquegrani v. Department ofMotor Vehicles (2008) 163 Cal.App.4th 741, 746.) However,ifthe facts on whichthe court relied are undisputed, the propriety of granting the injunction becomesa question of law. (/bid.) In addition,to the extent the grant requires construction ofstatutes or regulations, the matter presents a question of law which we review independently. (/bid.) Here, the appeal raises primarily questions of law -- in particular, whetherthe trial court correctly interpreted Wage Order No.4 and other legal authorities in determining that the Class waslikely to prevail on the merits ofthe claim seeking compensationfor all on-call time. B. Standards Governing Interpretation ofIWC Wage Orders “Nearly a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the IWC and delegating to it the authority to investigate various industries and promulgate wage orders fixing for each industry minimum wages, maximum hours of work, and conditions of labor.” (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1026.) The IWC was“vested with broad statutory authority to investigate ‘the comfort, health, safety, and welfare’ of the California employees underits aegis [citation] andto establish (1) ‘[a] minimum wage. . . which shall not be less than a wage adequate to supply . . . the necessary cost of properliving and to maintain the health and welfare of such [employees],’ (2) ‘[t]he maximum hours ofwork consistent with the health and welfare of [such employees]’ and (3) ‘(t]he standard conditions of labor demandedby the health and welfare of [such employees] ....”” (Industrial Welfare Com. v. Superior Court, supra, 27 Cal.3dat p. 701.) Legislation enacted in 1973 directed the IWC to “continually . . . review and... updateits ‘rules, regulations and policies to the extent foundby[it] to be 12 necessary to provide adequate and reasonable wages, hours, and working conditions appropriate for all employees in the modern society.’” (Industrial Welfare Com. v. Superior Court, supra, at pp. 701-702, quoting Lab. Code, § 1173 as enacted (Stats. 1973, ch. 1007, § 1.5, p. 2002), italics omitted.) Once the IWC determinedthat“in any occupation, trade, or industry, the wagespaid to employees [were] inadequate to supply the cost of properliving” or that “the hours or conditions of labor [were] prejudicial to the health, morals, or welfare of employees” (Lab. Code, § 1178), it was empoweredto formulate wage orders to govern minimum wages, maximum hours, and overtime pay for such occupation,trade or industry. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795; Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561.)'’ IWC wageorders “are to be accorded the same dignity as statutes”; in other words, they are “entitled to ‘extraordinary deference, both in upholdingtheir 999validity and in enforcing their specific terms.”” (Brinker Restaurant Corp.v. Superior Court, supra, 53 Cal.4th at p. 1027, quoting Martinez v. Combs (2010) 49 Cal.4th 35, 61.) DLSEopinionletters, COGCCEEE.while not controlling upon the courts by reason oftheir authority, do constitute a body of experience and informed judgmentto M There are currently 18 wage orders, 16 relating to specific industries or occupations (manufacturing; personal service; canning, freezing and preserving; professional, technical, clerical, mechanical andthe like; public housekeeping; laundry, linen supply and dry cleaning; mercantile; product handling after harvest (covering commercial packing sheds); transportation; amusement andrecreation; broadcasting; motion picture; preparation of agricultural products for market (on the farm); agricultural; household; and construction, drilling, logging and mining), one general minimum wage order, and one order implementing the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999. (See Cal. Code Regs., tit. 8, §§ 11000-11170; Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1026; Reynolds v. Bement, supra, 36 Cal.4th at p. 1084; California Hotel & Motel Assn. v. Industrial Welfare Comm. (1979) 25 Cal.3d 200, 205.) 13 which courts andlitigants may properly resort for guidance.”””’” (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1029.)'® However, they “need not be followedifthey do not contain persuasivelogicor if they unreasonably interpret a wage order.” (Cash v. Winn, supra, 205 Cal.App.4th at p. 1302.) Although DLSEopinionletters are due “‘consideration and respect,’it is ultimately the judiciary’s role to construe the language[ofthe applicable wage order].” (Harris v. Superior Court (2011) 53 Cal.4th 170, 190.)"? “*(T]n light ofthe remedialnatureofthe legislative enactments authorizing the regulation ofwages, hours and working conditions for the protection and benefit of employees,” the governing provisionsare to be “‘liberally construed 999with an eye to promoting such protection.’” (Morillion y. Royal Packing Co. (2000) 22 Cal.4th 575, 592, (Morillion) quoting Industrial Welfare Com.v. Superior Court, supra, 27 Cal.3d at p. 702.) Because California wage and hour laws are modeled to some extent on federal laws, federal cases may provide persuasive guidance wherethe languageofthestate statute or regulation parallels the languageofthe federal statute or regulation. (Building Material & 8 The sameis not true of the DLSE’s operations and procedures manual, which our Supreme Court has held is a void regulation, entitled to no deference. (Cash v. Winn (2012) 205 Cal.App.4th 1285, 1301-1302, citing Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563 and Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 572.) A court may nevertheless adopt a DLSEstatutory interpretation contained in a void regulation “if the court independently determinesthat the interpretation is correct.” (Gattuso v. Harte-Hanks Shoppers, Inc., supra, at p. 563.) 9 CPS contends the Labor Commission upheldits policy in October 2003 (the date of the MOU)and in September 2009, whenthe hearing officer rejected Larioza’s claim for additional compensation. However, the MOUexpired in 2007, and the hearing officer’s decision was rendered on a different evidentiary record, as Lariozatestified he could leave the jobsite when he “‘felt like it.”” More important, as the above authorities make clear, a decision by the Labor Commissioner or the DLSEis only as persuasive as its reasoning. 14 Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 658; Nordquistv. McGraw-Hill Broad. (1995) 32 Cal.App.4th 555, 562.) However, “where the languageorintent of state and federal labor laws substantially differ, reliance on federal regulations orinterpretation to construestate regulations is misplaced.” (Ramirez v. Yosemite Water Co., supra, 20 Cal.4th at p. 798.) Because “state law may provide employeesgreater protection than the [federal Fair Labor Standards Act],” if the IWC has not madeclearits intent to adopt a federal standard, courts should “decline to import any federal standard, which expressly eliminates substantial protections to employees, by implication.” (Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 592.) C. Trailer Guards’ Uncompensated Nighttime Hours At issue here is whether the hours thetrailer guards spendin thetrailers between 9:00 p.m. and 5:00 a.m. should be construed as “hours worked.” That term is defined in Wage Order No. 4 as “the time during which an employeeis subject to the control of an employer, and includesall the time the employeeis suffered or permitted to work, whetheror not required to do so.” (Cal. Code Regs. tit. 8, § 11040, subd. (2)(K).)”° CPSasserts twobases to support its argumentthat 20 All industry and occupation wageorders use this language to define “hours worked.” (See Cal. Code Regs., tit. 8, §§ 11010, subd. (2)(G), 11020, subd. (2)(G), 11030, subd. (2)(H), 11040, subd. (2)(K), 11050, subd. (2)(K), 11060, subd. (2)(G), 11070, subd. (2)(G), 11080, subd. (2)(G), 11090, subd. (2)(G), 11100, subd. (2)(H), 11110, subd. (2)(H), 11120, subd. (2)CH), 11130, subd. (2)(G), 11140, subd. (2)(G), 11050, subd. (2)(H), 11160, subd. (2)(J); Morillion, supra, 22 Cal.4th at pp. 581-582.) Twoinclude additional language: Wage Order No. 4 adds: “Within the health care industry, the term ‘hours worked’ meansthe time during which an employeeis suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act” (Cal. Code Regs.,tit. 8, § 11040, subd. (2)(K)); Wage Order No. 5, governing the public housekeeping industry, adds: “and in the case of an employee whois required to reside on the employment (Fn. continued on next page.) 15 the subject hours are properly excluded from “hours worked”: (1) thetrailer guards are merely “oncall,” free to engage in personal activities and not actively engaged in work unless and until an alarm soundsor they are otherwise actively engagedin investigation; and (2) the period constitutes excludable “sleep time.” For the reasonsset forth below, we conclude that the period does constitute hours worked, but that CPS may exclude from compensation upto eight hours a day as sleep time during the guards’ 24-hour weekendshifts. 1. On-Call Time It has long been recognized that an employee whom the employer perceives to be merely “on-call” may be engaged in compensable work. “[A]n employer,if he chooses, may hire a manto do nothing, or to do nothing but wait for something to happen. Refraining from otheractivity 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 behired, quite as muchasserviceitself, and time spent lying in wait for threats to the safety ofthe employer’s property maybetreated by the parties as a benefit to the employer.” (Armour & Co. v. Wantock (1944) 323 U.S. 126, 133 [private firefighters required to be on employer’s premises were engaged in compensable work, although muchoftheir time was spentin “idleness” and “amusements”].) Over half a century ago, the United States Supreme Court held that on-call time falls within the category of hours workedifit is “spent predominantly for the employer’s benefit,” which is “dependent uponall the premises, that time spent carrying out assigned duties shall be counted as hours worked. Within the health care industry, the term “hours worked” meansthe time during which an employee is suffered or permitted to work for the employer, whetheror not required to do sO, as interpreted in accordance with the provisions of the Fair Labor Standards Act.” (Cal. Code Regs., tit. 8, § 11050, subd. (2)(K).) 16 circumstancesofthe case.” (/bid.; accord, Skidmore v. Swift & Co. (1944) 323 U.S. 134, 136-137.) “Facts may show that the employee was engagedto wait, or they may showthat he waited to be engaged. ... The law does not impose an arrangement uponthe parties. It imposes uponthe courts the task of finding what the arrangement was.” (Skidmore v. Swift & Co., supra, 323 U.S.at p. 137.) In Morillion, supra, 22 Cal.4th 575, our state Supreme Court held that the mostsignificant factor in determining whether the employee’sactivities constitute “hours worked’”is “[t]he level of the employer’s control over its employees.” (Id. at p. 587.) At issue in Morillion was the compensability of employeetravel time where the employer required the employees-- teams of agricultural workers -- to meet at designated locations and to take the employer’s buses to the various work sites. Noting that employees who commute on their own have considerably more freedom and “may choose and maybeable to run errands before work and to leave from work early for personal appointments,” the court held: “[B]y requiring employees to take certain transportation to a work site, {the employer] thereby subjects those employeesto its control by determining when, where, and how they are to travel. Under the definition of ‘hours worked,’ that travel time is compensable. [Citation.]” (/d. at pp. 587-588.) Courts determine the employer’s level of control by analyzing a number of factors, beginning with the parties’ agreement, which providesinsight into how the parties believe the time should be characterized. (Skidmore v. Swift & Co., supra, 323 USS.at p. 137; Gomez v. Lincare, Inc. (2009) 173 Cal.-App.4th 508, 523; Berry v. County ofSonoma (9th Cir. 1994) 30 F.3d 1174, 1180-1181.) Courts also consider whetherthe restrictions on the employee’s time “are primarily directed toward the fulfillment of the employer’s requirements and policies,” and whether the time “is so substantially restricted that [the employees] are unable to engage in private pursuits.” (Madera Police Officers Assn. v. City ofMadera (1984) 36 17 Cal.3d 403, 409.) In resolving the degree to which employeesare able to engage in private pursuits during on-call time, courts generally apply seven factors: “‘(1) whether there was an on-premisesliving requirement; (2) whether there were excessive geographicalrestrictions on [the] employee’s movements; (3) whether the frequency ofcalls was unduly restrictive; (4) whethera fixed time limit for response wasundulyrestrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could easerestrictions; and (7) whether the employee had actually engaged in personalactivities during call-in time.’” (Gomez v. Lincare, Inc., supra, 173 Cal.App.4th at p. 523, quoting Owensv. Local No. 169 (9th Cir. 1992) 971 F.2d 347, 351; accord, Seymore, supra, 194 Cal.App.4th at p. 374.) Once the facts are ascertained, whether the limitations on employees’ personalactivities while on call are such that the time should be considered compensable is a question of law. (Seymore, supra,at p. 373.) In Gomez v. Lincare, Inc., the court found that the on-call time of employees whoin their active duty hours delivered and set up in-home medical equipment wasnot properly categorized as hours worked. Although the employees were expected to respondto patient requests for assistance while on-call, there was no on-site living requirement, the geographicrestrictions on the employees’ ability to moveabout during on-call time were not excessive, they were provided pagers, and the time limits set for responses to pages -- 30 minutes to respond telephonically and two hoursif a home visit was required -- were not unduly restrictive. (Gomez v. Lincare, Inc., supra, 173 Cal.App.4th at p. 524.) Moreover, the employees were permitted to freely trade on-call responsibilities with co- workers. (Jbid.) Applyingthe samefactors to different circumstances, the court reached a contrary conclusion in Seymore, supra, 194 Cal.App.4th at p. 361. There, the 18 plaintiff employees, who fell under Wage Order No. 9 governing the transportation industry, worked 14-day “hitches” on the defendant employer’s ships, providing emergencycleanup ofoil spills and other aquatic discharges. The employer considered the employeesto be off duty or “on standby”during 12 of every 24 hours. During their hitches, the employees were required to sleep on board the vessel. They could leave during their standby time, but were required to check in and out, carry a cell phoneor pager, and stay close by, so they could respond within 30 to 45 minutes if they received notification of an emergency. In concluding that the employees were entitled to additional compensation, the court found the mostcritical factor to be the requirement that the employeessleepat the employer’s premises. The court noted that with the exception ofcertain occupations covered by a different wage order, “California courts have consistently held that an employee required to sleep at the worksite is subject to the employer’s control during sleeping hours.””! (Seymore, supra, at p. 376.) The employer’s requirement that the employees sleep on board “significantly affect[ed] and limit{[ed] what the employee[s] c[ould] and c[ould not] do during [their] . . . nonsleeping hours,” and the limitations placed on the employees’ whereabouts during the 12-hour standby period, viewed as a whole, “significantly restricted their ability to pursue activities of their choice.” (/d. at p. 380.) 21 The court distinguished Jsner v. Falkenberg/Gilliam & Associates, Inc. (2008) 160 Cal.App.4th 1393 and Brewer v. Patel (1993) 20 Cal.App.4th 1017, which reached contrary conclusions interpreting Wage Order No. 5 (Cal. Code Regs., tit. 8, § 11050). (See Seymore, supra, 194 Cal.App.4th at p. 376.) As noted, Wage Order No. 5 governs the public housekeeping industry and includesin the definition of “hours worked” by employees required to reside on the employment premises only the time spent “carrying out assigned duties.” (Seymore, supra, at pp. 376-377, Cal. Code Regs., tit. 8, § 11050, subd. (2)(K).) 19 In reaching its conclusion, the court in Seymore relied on earlier California cases holding that an employeeis entitled to compensation when required to be on the employer’s premises. These included Aguilar v. Associationfor Retarded Citizens (1991) 234 Cal.App.3d 21 (Aguilar). There, the plaintiffs were employed as personalattendants at a home for the mentally impaired and thusfell under Wage Order No.5, governing the public housekeeping industry. (See Cal. Code Regs., tit. 8, § 111050, subd. 2(N).) They worked from 6:00 a.m. until 9:00 a.m., wereoff duty until 2:00 p.m., and were back on duty from 2:00 p.m.until 10:00 p.m. Between 10:00 p.m. and 6:00 a.m., they were required to be “oncal!” at the group home, but were permitted to sleep. They were not compensated for the overnight hours unless actively assisting one of the residents living in the home. (Aguilar, supra, 234 Cal.App.3d at p. 24.) Although the court in Aguilar did not apply the factors outlined in Seymore,it reached the same conclusion with respect to compensability of the on-call period. In the absence of any applicable exception in the wage order, the court found that the time fell under the broad definition of “‘hours worked”-- “the hours when an employee‘is subject to the control of an employer’”-- which “clearly includes time when an employeeis required to be at the employer’s premises and subject to the employer’s control even though the employee was allowed to sleep.” (/d. at p. 30.) Accordingly, the employees were “entitled to compensation for all the hours worked”; the employer was“not entitled to deduct those hours whenit allow[ed] the employeesto sleep.” (Id.at p. 31; accord, Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 574 [lunch period was compensable where employees wererestricted from leaving work premises].)”” 22 The employer in Aguilar sought to rely on section 3(J) of Wage Order No.5, (Fn. continued on next page.) 20 Here, the pertinent factors support the trial court’s finding that the trailer guards’ on-call hours represent hours worked for purposes of Wage Order No.4. Bytheir presence on site during the on-call hours, the guards perform an important function for their employerandits clients: they deter theft and vandalism. CPS promisesits clients security services throughout the night and for 24 hours on Saturday and Sunday, and would bein breachifno security guards were present between 9:00 p.m. and 5:00 a.m. The parties’ On-Call Agreements designate that period as “free time,” but it is clear from the Agreements andthe stipulated facts that trailer guards are not free to leave at will. A guard may leave only when andif a relieveris available. From this, it can reasonably besaid that the restrictions on the on-call time are “primarily directed towardthe fulfillment ofthe employer’s requirements,” and the guards are “substantially restricted” in their ability to engagein private pursuits. (See Madera Police Officers Assn. v. City ofMadera, supra, 36 Cal.3d at p. 409.) Ofthe seven factors listed in Gomez v. Lincare, Inc., the majority favors a finding that during the on-call period,the trailer guardsare significantly limited in which excludes from daily overtime provisions “ambulancedrivers and attendants scheduled for twenty-four (24) hour shifts of duty” who had “agreed in writing” to “exclude from daily time worked . . . a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours.” Acknowledging that this provision by its terms applied only to “ambulance drivers and attendants scheduled for twenty-four (24) hour shifts of duty,” the employer argued that the court should nevertheless apply section 3(J) to the plaintiffs, as they were effectively working 24-hour shifts, while being “temporar[ily] release[d] . . . to attend to personal interests.” (Aguilar, supra, 234 Cal.App.3d at pp. 30- 31 & fn. 4.) The court was not persuaded: “[The employer’s] characterization would abrogate the distinction between employees working 24-hourshifts and those working less than 24-hour shifts. Under[its] analysis, all employees in the work force could be characterized as working 24-hourshifts, with the only variation being the length of the ‘temporary release . . . to attend to personal interests.’, An accountant who worked 8 hours a day could be viewed as working a 24-hourshift with a 16-hour temporary release period.” (/d. at p. 31.) 21 their ability to engage in personal activities.”> They are requiredto live on the jobsite. They are expected to respond immediately, in uniform, when an alarm sounds or they hear suspiciousnoiseor activity. During the relevant hours, they are geographically limited to the trailer and/or the jobsite unless a reliever arrives; even then, they are required to take a pager or radio telephone so they may be called back; and they are required to remain within 30 minutes of the site unless other arrangements have been made. They maynoteasily trade their responsibilities, but can only call for a reliever and hope one will be found.”* Mostimportant, the trailer guards do not enjoy the normal freedomsofa typical off-duty worker, as they are forbiddento have children, pets or alcoholin the trailers and cannot entertain or visit with adult friends or family withoutspecial permission. On this record, we concludethe degree of control exercised bythe employer compels the conclusionthat the trailer guards’ on-call timefalls under the definition of “hours worked” under California law. (Seymore, supra, 194 Cal.App.4th at p. 380; Madera Police Officers Assn. v. City ofMadera, supra, 36 23 The parties provided no evidence concerning oneof the factors: the frequency of the alarms or other nighttime interruptions. 24 Thetrailer guards’ situation is far removed from the typical situation in which the ability to trade responsibilities has been found to be a significant factor in determining whether on-call time is compensable. Generally, courts rely on this factor where multiple employees with the same skills are on call and no single oneis required to respond to every call. (See, e.g., Gomez v. Lincare, Inc., supra, 173 Cal.App.4th at p. 524; Owensv. Local No. 169, supra, 971 F.2d at pp. 348-349, 353, 354 [when emergencyaroseafter hours, plant’s mechanics werecalled sequentially until one agreed to return to plantto fix equipment; each individual mechanic was required to accept a “fair share” of call-ins, which, on average, amountedto six per year}; Martin v. Ohio Turnpike Comm’n(6th Cir. 1992) 968 F.2d 606, 611-612 & fn. 5 [when highway maintenance worker was too distant to arrive in time to help with emergency, employer called another worker, with no adverse consequencesto workeroriginally called]; Boehm v. Kansas City Power and Light Co. (10th Cir. 1989) 868 F.2d 1182, 1185 [power company linemen were required to respond to one-third of callback requests].) 22 Cal.3d at pp. 408-410 [police officers’ meal periods were compensable where time wasnot their own; officers were required to respondto telephone calls from superiors and in-person requests by citizens and to take immediate action to quell crimes committed in their presence, and were forbidden to conduct personal business while in uniform]; see also Renfro v. City ofEmporia (10th Cir. 1991) 948 F.2d 1529, 1536-1537 [firefighters were unable to meaningfully engage in personalactivity during on-call hours when required to answerevery cal] -- three to five per on-call period-- and report within 20 minutes]; Cross v. Arkansas Forestry Comm’n.(8th Cir. 1991) 938 F.2d 912, 916-917 [conditions imposed by employer were sufficiently restrictive to require compensation for on-call periods where employees were required to monitor radio and were unableto participate in activities that would interfere with ability to listen, including musical events, sporting events, church services, and social gatherings].) In reaching this conclusion, we note that several federal courts have found employees on call within a geographically-restricted area were notentitled to compensation until called to active duty.”° However, in most such cases, the employees, althoughrestricted in the distance they could travel from the jobsite, had considerably more freedom to engagein personalactivities than do thetrailer guards. (See, e.g., Dinges v. Sacred Heart St. Mary’s Hospitals (7th Cir. 1999) 164 F.3d 1056, 1058 [plaintiff emergency medical technicians werenot entitled to compensation during on-call time although required to respond within seven to 15 minutes; both lived within seven minutes of hospital and could cook,eat, sleep, read, exercise, watch TV, do housework,andcare for pets, family, and loved ones 25 Becausestate and federal courts both rely on the factors set forth in Gomezv. Lincare, Inc. and Seymore to determine whether on-call time is compensable, we may look to federal authorities for guidance. 23 at home,as well as watch children participate in sports, attend dancerecitals, and frequent restaurants andparties in vicinity ofhome and hospital]; Berry v. County ofSonoma, supra, 30 F.3d at pp. 1184-1185 [coroners’ on-call hours were not compensable although they were required to respond within 15 minutes; evidence indicated they were ableto socialize with friends, dine out, shop, read, watch television and engage in hobbies]; Bright v. Houston Northwest Medical Center Survivor, Inc. (Sth Cir. 1991) 934 F.2d 671, 676 [employee’s on-call time was not compensable although he was required to stay within minutes of hospital; evidence showed he wasable to carry on “normalpersonal activities at his own home,”as well as “normal shopping, eating at restaurants, and the like”]; Brock v. El Paso Natural Gas Co. (Sth Cir. 1987) 826 F.2d 369, 370 [employeesofnatural gas pumpstation located in remote area werenot entitled to compensation during on- call time where on-call employees were free to eat, sleep, entertain guests, watch television or engage in any otherpersonal recreational activity, alone or with family, as long as they stayed within hailing distance ofalarm andstation]; Carman v. Yolo County Flood Control & Water Conservation Dist. (E.D.Cal. 2008) 535 F.Supp.2d 1039, 1056-1057 [“damtender” was notentitled to additional compensation; though required to stay near dam, he wasfree to have visitors, dine with family, and attend lodge meetings, and spent numerous on-call hours making improvements to family home].) CPScalls to our attention the federal rule embodied in the Code of Federal Regulations (C.F.R.),title 29, part 785.23, which provides: “An employee who resides on his employer’s premises on a permanentbasis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normalprivate pursuits and thus must have enough timefor 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 24 determine the exact hours worked under these circumstances and any reasonable agreementofthe parties which takes into considerationall ofthe pertinent facts will be accepted.” CPS asks us to engraft that regulation onto Wage Order No.4, reasoning thatit is part of a “comprehensive” package of federal regulations that permits exclusion of sleep time from compensable hours under various circumstances, including somethat are recognized in California. (See Part C.2, ante.) We decline to do so. Preliminarily, we note that underits express terms, part 785.23, of 29 C.F.R., does not appear to apply to the instantsituation, or any situation in which the employee is requiredto be present at the employer’s premises during specified hours. It anticipates an agreement encompassing those periods when the employee has “enough time foreating, sleeping, entertaining, and other periods of complete freedom from all duties when he [or she] may leave the premises for purposes of his [or her] own.” This may accurately describe the midday hours whenthetrailer guardsare free to leave the premises, but it does not describe the hours from 9:00 p-m. to 5:00 a.m., when they remain on call. During the on-call period, the trailer guards do not have “complete freedom from all duties,” and even if permitted to leave, must carry a pager andstay sufficiently close to the jobsite to be able to return within 30 minutes if required to do so.”° 6 In Bomanvy.All The Little Things Count, L.L.C. (S.D. Tex., Apr. 24, 2013, No. 3:12-CV-00077) 2013 U.S. Dist. LEXIS 70237, the court observedthat “[a] plain reading of this regulation indicates that it could not apply to a situation . . . in which the employee is required to be at the employer’s premises. . . , but rather addresses the quite different situation of someone whohasthe option of sleeping at the employer’s premises but also has ‘complete freedom . . [to] leave the premises’ and, for example, go to a movie theater, restaurant, or gym.” (2013 U.S. Dist. LEXIS 70237, *8, fn. 2.) The court acknowledged, however,that “[d]espite this natural reading,” the DOL “has long interpreted the section as applying to ‘on duty’ sleep time in the group homeindustry ....” (Id., at p. *9.) We note that some federal courts have sided with the DOL and (Fn. continued on next page.) 25 More important, as our Supreme Court has madeclear, “[a]bsent convincing evidence of the IWC’s intent to adopt the federal standard,” we must “decline to import any federal standard, which expressly eliminates substantial protection to employees, by implication.” (Morillion, supra, 22 Cal.4th at p. 592.) Likewise, we maynotuse federal authorities and regulations to construestate regulations where the languageorintent of state and federal law substantially differs, and the federal law would provideless protection to California employees. (Ramirezv. Yosemite Water Co., supra, 20 Cal.4th at p. 798.) CPS points to no provision of Wage Order No.4 containing languagethat parallels that of 29 C.F.R. part 785.23, or to any evidence that the [WC intended to adopt that federal standard for security guards. The only wageorder with languagelimiting the compensation to which a worker may be entitled while residing on the employer’s premises is Wage Order No.5, whichstates that in the case of an employee requiredto reside on the employmentpremises, only the time spent carrying out assignedduties should be counted as hours worked. But Wage Order No.5 applies only to those in the public housekeeping industry and that language doesnot appear in any other wage order. Applying 29 C.F.R. part 785.23 or the language of Wage Order No. 5 to employeesfalling under other wage orders would deprive employees such as those in Seymore, whoresided for extendedperiods oftime on the employer’s ships, of the additional compensation awarded bythe court. Accordingly, we conclude that applied part 785.23, of 29 C.F.R., beyondits literal terms. (See, e.g., Bouchard v. Regional Governing Bd.(8th Cir. 1991) 939 F.2d 1323, 1329-1330 [applying part 785.23 where employees of group homefor developmentally disabled were expected to sleep at the home]; Beaston v. Scotland Schoolfor Veterans’ Children (M.D.Pa. 1988) 693 F.Supp. 234, 240 [applying part 785.23 to houseparents at school for orphans required to remain on campus during sleep time].) 26 applying part 785.23 to California employees in the manner CPS urges would substantially impair the protections provided by California law.”’ 2. Sleep Time During 24-Hour WeekendShifts Although weagree with the trial court that the trailer guards’ eight hours of on-call time during the week must be compensated, we reach a different conclusion with respect to their 24-hour weekendshifts. California courts have held that when an employee works a 24-hourshift, the employer and employee may exclude, by agreement, up to eight hours for “sleep time.” (Seymore, supra, 194 Cal.App.4th at p. 381; Monzon, supra, 224 Cal.App.3d at p. 46.) The Class contendsthat the rule announced in Seymore and Monzondoesnot apply to employeesfalling under Wage Order No. 4. The Class further contends, and persuadedthetrial court, that application of that rule to the instant case would violate the Supreme Court’s proscription against adoption of federal regulations to eliminate protection to California employees. Wedisagree. In Monzon, the employees were ambulance drivers and attendants who worked 24-hour shifts every other day -- a total of seven 24-hourshifts in each two-week period -- and received pay for 14 hours per shift. (Monzon, supra, 224 Cal.App.3d at p. 24.) Of the remaining 10 hoursoftheir shifts, two hours were 27 Wefind support for our conclusion in Aguilar, where the employersimilarly urged the court to follow a federal DOL interpretation of hours worked, which permitted employers to deduct eight hoursof sleep time for all resident employees, whether on duty 24 hours or not, and loosely defined “resident” to include employees whostayed at residential care home oneor two nights a week, but maintained a primary residence elsewhere. (Aguilar, supra, 234 Cal.App.3d at pp. 31-34 & fn. 7.) The court stated: “[E]ven if we were persuaded by [DOL’s] interpretation, federal law does not control unlessit is more beneficial to employees than the state law. [Citation.]... Here, the state rule is clearly more beneficial to employees in compensating those employeesforall the hours they are subject to [the employer’s] control, including the hours during the overnight workshift when they are allowed to sleep.” (Aguilar, supra, at p. 34.) 27 attributed to meal time and eight hours wereattributed to sleep time, unless the driver or attendant was actively on duty so frequently during the 24-hour shift that there was no uninterrupted period of five hours available for sleep.”* The wage order at issue, Wage Order No. 9 governing the transportation industry, contained a provision expressly permitting “ambulance drivers and attendants” to “apree[] in writing” to exclude from overtime “a regularly scheduled uninterrupted sleeping period of not more than eight(8) hours.” (Cal. Code Regs., tit. 8, § 11090, subd. (3)(K).)’ The parties had not, however, entered into written employment agreements, although there was ample evidence of an implied agreementto exclude eight hoursofsleep time per shift. (224 Cal.App.3d at pp. 25, 47.) The issue was whether, in the absence of a written agreement, the sleep time could be excluded. Relying in part on the federal definition ofhours worked codified in 29 C.F.R. part 785.22, the court held that “it is permissible for an employer and ambulance drivers and attendantsto enter into an agreement, which neednot be written, to exclude up to eight hours ofsleep 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.” (224 Cal.App.3dat p. 46.)° 28 The employer paid forfive additional hours in this situation. On appeal,it conceded it should have paid an additional eight hours when the driver or attendant did not have five continuous hours for sleep during his or her shift. (Monzon, supra, 224 Cal.App.3d at pp. 24-25.) 9 At the time of the Monzon decision, this language was foundin subdivision (3)(G) of the California Code of Regulations,title 8, section 11090. (See Monzon, supra, 224 Cal.App.3dat pp. 31-32.) It is now found in subdivision (3)(K) of section 11090. 30 Title 29 C.F.R. part 785.22 states: “Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bonafide meal periods and a bonafide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequatesleepingfacilities are furnished by the (Fn. continued on next page.) 28 Monzon was followed in Seymore, where the employees’ active duty shifts on board the ships were 12 hours, and the court concluded the remaining 12 hours could not be designated uncompensated standby time due to the employer’s requirement that the employees remain on or near the ships. The court held, however, that the employees were not entitled to compensation for the entire 12 standby hours: “As noted above,[the employer] allocated eight hours of unpaid time a day for sleep. The undisputed facts establish that sleeping facilities were provided for employees on the ships, and that it was exceptionally rare for their sleep to be interrupted by an emergency. The undisputed facts also establish an implied agreement between the parties that plaintiffs would not be compensated for eight hours of sleep time so long as their sleep was not interrupted. Prior to their employment, plaintiffs received a handbookthat set forth [the employer’s] compensation policies, including that employees would not be compensated for eight hours of ‘off-duty’ sleep time each day. Plaintiffs did not dispute that they were ‘aware of and worked for [the employer] pursuant to the pay structure set forth in [the] employee handbook.” (Seymore, supra, 194 Cal.App.4th at p. 382.) Accordingly, the plaintiffs were entitled to be compensated for “only four, rather than 12, hours of standby time during each 24-hour working day... .” (Jbid.) The Seymore court rejected the plaintiffs’ contention that Monzon applied only to ambulance drivers and attendants: “Plaintiffs are correct that wage order No.9 provides an exemption for ambulancedrivers and attendants who have agreed in writing to exclude from compensation eight hours of sleep in a 24-hour period. [Citation.] Nonetheless, the [Monzon]court held that this exemption was employer and the employee can usually enjoy an uninterrupted night’s sleep.” In contrast, 29 C.F.R. part 785.21, provides: “An employee whois required to be on duty for less than 24 hours is working even though heis permitted to sleep or engage in other personal activities when not busy.” 29 notapplicable in [that] case because there was no written agreement. [Citation.] Instead, recognizing that the DLSE’s ‘enforcementpolicy for sleep timeclosely resembles the federal policy,’ the court read into the state regulation defining compensable hours workedtheprovisions ofthe federal regulation, 29 [C.F.R.] part 785.22 ....” (Seymore, supra, 194 Cal.App.4th at pp. 381-382, quoting Monzon, supra, 224 Cal.App.3d at pp. 41-42.) The Seymore court went on to observethat “[i]n the 20 years since Monzon was decided, nojudicial decision brought to our attention has disagreed with its ruling and neither the statute nor the regulations have been amendedto modify the ruling.” (Seymore, supra,at p. 382.) A careful reading ofthe cases thus disposes of the Class’s contention that the rule announced in Monzon and followed in Seymore waslimited to employees governed by Wage Order No. 9. While that wage order contained a specific provision permitting an employer and employee to agree in writing to exclude sleep time from compensation, neither court relied on the provision to exclude the eight hours of sleep time. Instead, both courts looked to the wage order’s definition of “hours worked” and found it comparable to the federal definition.” The court in Monzon explainedthat the exclusion for sleep time need not be written into the wage order because “the IWC’s historical rule had beento permit the exclusion of sleep and mealperiods”; thus, even withoutthe specific exclusion applicable to ambulance drivers and attendants found in Wage Order No.9,the agency recognizedthat parties could “agree that up to eight hourssleep time ofa 31 In fact, the court in Monzon found formersection 3(G) of Wage Order No. 9 related only to the “relaxation of daily overtime requirements,” and “did notaffect the right of parties to agree that up to eight hours sleep time of a twenty-four hour shift might be excluded from compensabletime.” (Monzon, supra, 224 Cal.App.3dat pp. 44-45.) 30 twenty-four-hour shift might be excluded from compensable time.” (224 Cal.App.3d at pp. 42, 45.) Weagree with the courts in Seymore and Monzonthat becausethe state and federal definitions of hours worked are comparable and havea similar purpose, federal regulations and authorities may properly be consulted to determine whether sleep time may be excluded from 24-hourshifts. 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. There are sound reasons for permitting an employer who engages an employee to work a 24-hour shift and compensates him or her for 16 of those hours to exclude the remaining eight hours for sleep time, as long as the time is uninterrupted, a comfortable place is provided, and the parties enter into an agreement covering the period. Most employees would be sleeping for a similar period every day, whether on duty or not, and the compensation providedfor the other 16 hours, which should generally include considerable overtime, ensuresthat the employees receive an adequate wage. Whileit is true that under the rule applied in Seymore and Monzon, an employee on duty less than 24 hours would be entitled to compensation for the same period, wefind no incongruity. Unlike an employee called to work fewer hours, an employee on a regular 24-hour shift may be presumedto be spending a significant portion of that time asleep or resting. As the employee is being adequately compensatedfor all his or her waking hours, there is no need to require additional compensation for the period when the employeeis asleep.” 32 Federal regulations too recognize different treatment of employees, depending on the length of their shifts. As noted, 29 C.F.R. part 785.22 allows the exclusion of eight (Fn. continued on next page.) 31 Asthe courts in Seymore and Monzonfurther held, the employer and employee must enter into an agreement before such time can be excluded; the burden is on the employer to prove that an agreement exists and to demonstrate its terms. (Seymore, supra, 194 Cal.App.4th at pp. 381-382; Monzon, supra, 224 Cal.App.3d at p. 46.) The On-Call Agreements here manifested the parties’ intent that the trailer guards not be compensatedfor the eight hours between 9:00 p.m. and 5:00 a.m. Although the Agreements did not refer to this period as “sleep time,” it is the period when most human beingsare likely to be asleep and according to the stipulated facts, the guards are permitted to sleep during this period, or to relax in other ways, and are provided a home-like trailer with adequate sleeping facilities. The Agreements further provide that the guards will be compensatedforall the time their ability to sleep is interrupted by the necessity of conducting investigations, and that on any night a guard doesnotreceiveat least five hours of uninterrupted free time, the entire eight hours will be compensated. Accordingly, the parties’ On-Call Agreements fulfill the requirements that permit eight hours of sleep time to be excluded from their 24-hour weekendshifts. hours of sleep time for employees on duty 24 hours or more, while part 785.21 deems an employee engagedfor less than 24 hours to be working, even though permitted to sleep or engage in other personalactivities. (See fn. 32, ante.) 32 DISPOSITION The order granting the preliminary injunction is reversed to the extentit requires CPS to compensate the trailer guards for the entirety of their 24-hour weekend shifts. On those days, the guards must be compensated for 16 hours; eight hours may be excludedfor sleep time, provided the guardsare afforded a comfortable place to sleep, the time is not interrupted, the guards are compensated for any period of interruption, and on any day they do not receive at least five consecutive hours of uninterrupted sleep time, they are compensated for the entire eight hours. In all other respects, the orderis affirmed. Eachparty is to bear its own costs. CERTIFIED FOR PUBLICATION MANELLA,J. Weconcur: WILLHITE,Acting P. J. SUZUKAWA,J. 33 PROOF OF SERVICE I, Miles E. Locker, hereby declare andstate: I am a partner with the law firm ofLocker Folberg LLP, with a business addressat 71 Stevenson Street, Suite 422, San Francisco, California 94105. I am not party to the above-entitled action. I am an attorney licensed to practice law in the State of California. On the date hereof, I caused to be served the foregoing PETITION FOR REVIEW on the interested parties, by depositing copies thereof in the United States mail enclosed in sealed envelopes, with first class postage fully prepaid, addressed to the personslisted on the following pages. I declare underthe penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this August 12, 2013 at San Francisco, California. IneOL, Miles E. Locker SERVICE LIST Appellate Court Case No. B240519 Tim Mendiola,et al. vs. CPS Security Solutions, Inc. et al. LASC Case No. BC 388956 consolidated with Floriano Acosta, et al. vs. Construction Protective Services, Inc., et al. LASC Case No. BC 391669 CPS SECURITY SOLUTIONS,INC. Jim D. Newman Tazamisha Imara 436 West Walnut Street Gardena, CA 90248 Telephone: (310) 878-8165 Facsimile: (310) 878-8181 jnewman@cpssecurity.com timara@cpssecurity.com Defendants CPS Howard Knee BLANK ROMELLP 1925 Century Park East, 19" Floor Los Angeles, CA 90067 Telephone: (424) 239-3400 Facsimile: (424) 239-3434 Email: knee@blankrome.com Attorneysfor Defendants CPS Theodore J. Cohen SPOLIN COHEN MAINZER BOSSERMAN, LLP 11601 Wilshire Blvd., Suite 2410 Los Angeles, CA 90025 Telephone: (310) 586-2400 Facsimile: (310) 586-2455 Email: cohen@sposilco.com Attorneysfor Defendants CPS Ceasar Natividad THE NATIVIDAD LAW FIRM 3255 Wilshire Blvd., Suite 1004 Los Angeles, CA 90010-1414 Telephone: (213) 261-3660 Facsimile: (213) 947-4012 Email: natividadlaw@aol.com Class Counselfor Mendiola/Acosta Plaintiffs Steve Garcia, etc. vs. CPS Security Solutions, Inc.et al. San Bernardino Superior Court Case No. CIVVS 906759 Melissa Grant Suzy Lee CAPSTONE LAW APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone (310) 556-4811 Facsimile (310) 943-0396 Email: melissa.grant@capstonelawyers.com Email: suzy.lee@capstonelawyers.com Attorneysfor PlaintiffSteve Garcia Martin Hoke,et al. vs. Construction Protective Services, et al. Orange County Superior Court Case No. 05 CC 00061 and 05CC 00062 Gregory G. Peterson, ALC 21163 Newport Coast, Suite 600 Newport Coast, CA 92657 Telephone: (949) 864-2200 Facsimile: (949) 640-8983 Email: ggpetersenlaw@gmail.com Class Counselfor Martin Hoke,etal. Kirby Farris Adam Clayton FARRIS, RILEY, & PITT LLP 2025 3" Avenue North, Suite 400 Birmingham, Alabama 35210 Telephone: (205) 324-1212 Facsimile: (205) 324-1255 Email: kfarris@frplegal.com Class Counselfor Martin Hoke,etal. Service ofNonparty Public Officer or Agency Clerk to the Hon. Jane L. Johnson Los Angeles Superior Court Central Civil West Courthouse 600 W. Commonwealth Avenue, Dept. 308 Los Angeles, California 90005 California Court of Appeal Second Appellate District, Division 4 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013 Chair, Judicial Council of California Administrative Offices of the Courts Attn: Appellate & Trial Court Judicial Services (Civil Case Coordination) 455 Golden Gate Avenue San Francisco, CA. 94102-3688 Appellate Coordinator Office ofthe Attorney General Consumer Law Section 300 South Spring Street Los Angeles, CA 90013-1230