Rainey Collins Lawyers

Employees Sleeping on the Job Entitled to be Paid Minimum Wage

By Olivia Lund, Friday, 26 February, 2010, Employment

A recent decision of the Employment Court has held that employees who are required to ‘sleepover’ as part of their employment are entitled to be paid minimum wage for every hour they are required to work.

The case involved a claim by a disability support worker who was required to work “sleepover” shifts from 10pm to 7am, for which he got paid $34.  This amounted to $3.77 per hour, less than a third of the then adult minimum wage*.

The worker was allowed to sleep during the shift, but was frequently disturbed, and often had to get up to provide support services for residents in the house.

The case was appealed by IHC, the National Residential Intellectual Disability Providers, Business New Zealand, and the Department of Labour. They argued that the requirement to pay the adult minimum wage should be ‘averaged’ over the total number of hours a disability support worker is required to work.  They stated that in this case the employee was paid $17.66 for each hour worked and an allowance of $34 for each sleepover. When the total amount he was paid was divided by the number of hours worked, the average hourly rate paid was over $12.50, the minimum wage.

The Employment Court rejected this argument, and held that the disability support worker was entitled to be paid not less than $12.50* for every hour worked, including sleepover time, whether awake and providing support services or not.

IHC has expressed concern that it will not be able to pay workers the increased amount unless the government provides them with the funds to do so.

Workers who have not received minimum wage for all hours worked in the past may have the right to claim up to 6 years in back pay.

The case will have significant implications for employers with sleepover staff such as boarding schools and aged care providers.

The case has been appealed to the Supreme Court and is due to be heard later in 2010.

*From 1 April 2010 the adult minimum wage rate will be $12.75.  Employers must pay employees at least the minimum wage – even if an employee is a home worker, causal, temporary part time or paid by commission.

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