Sleeping on the Job - What is Work?

It seems a simple question, but looks can be deceptive.  Whether someone’s obligation constitutes work can become very complicated. 

Many of our statutes refer to work, but often in different contexts, and without there being one universal definition.  Focus turned to the question of what constitutes work in Idea Services v Dickison.  That was a case about workers who slept over in supported accommodation facilities.  They would have a bedroom to sleep in, but were required to deal with client needs through the night, if circumstances required.  For this they were paid a small overnight allowance. 

Ultimately, the Court of Appeal determined that although they might be sleeping, staff were working for the purpose of the Minimum Wage Act.  The Court reached this conclusion with reference to three considerations; the duties performed by the employee, the restrictions on the employee’s activity and the benefit to the employer.  In doing so, it found that it was not possible to contract out of the Minimum Wage Act – it creates a minimum standard, so even if the parties agree otherwise, all hours of work must be paid at the minimum wage.    

A number of other cases followed; a boarding home matron, an on-call funeral director and a person sleeping over to respond to issues at a salmon hatchery are among those who took separate cases to claim unpaid wages on the basis that their sleeping was work.  The Court takes a case-by-case approach to these claims, carefully analysing the three considerations – duties, restrictions and benefits. 

An interesting development has been the activity of the Labour Inspectors in this area.  Last year, a Labour Inspector issued an improvement notice to Smiths City Group Limited, claiming that it failed to pay minimum wage in respect of work it required its employees to perform.  The retail chain challenged the improvement notice. 

The issue arose because Smiths City had a practice of holding morning meetings about 15 minutes before the shop opened.  Staff attended the meetings before their shift started at 9am – they were not paid for meeting time.  Smiths City argued that the meeting was not work, because attendance was not compulsory, and meetings were relaxed (staff could wear slippers, lie on couches and drink coffee for example). 

The Employment Relations Authority found that in some shops where attendance was enforced and employees were entitled to actively participate, this was probably work.  In other shops, where the meeting was a more laid-back affair and attended was not so rigidly observed, the meeting was probably not work. 

Although confined to a specific point (because the case was about whether a challenge to an improvement notice could be upheld), the decision is interesting, because it demonstrates how nuanced the question of what constitutes work might be, and how, even without the complication of sleeping, there may be an argument about whether an employee’s time at work is work. 

Take home lesson:  if you are sleeping on the job because your employer wants you there, you are probably working and if you are controlling your employee’s activity for the benefit of the business, you should probably be prepared to pay for it.