On-Call Time: To Pay or Not to Pay?
With new technology such as BlackBerries®, cellphones, etc., the practice of requiring employees to be available on call is becoming even more widespread. Now, not only are healthcare and emergency workers required to be on call, but workers in many other industries are also expected to be available 24/7. AT&T workers in California just joined together to bring a class action, filed August 12, 2009 in the Southern District of California, claiming that they should have been paid for being on call 24/7 to handle IT maintenance services for customers’ hardware, software, applications and desktop computers.
What constitutes “on-call” time that is deemed to be work requiring compensation? The Wage and Hour Division of the Department of Labor issued a letter earlier this year (see) explaining some of the criteria:
“Under 29 C.F.R. § 785.17, ‘[a]n employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.’”
Some of the key issues to consider in determining whether to pay for on-call time are:
- Is the employee required to stay at home or required only to carry a cellphone or other device to receive calls?
- How close to the work location (whether it be the company office or a customer location) is the employee required to be? In other words, what is the required response time?
- Are employees on call 24/7, or only certain hours per week or month, and can they switch their on-call time with colleagues if necessary for their personal purposes?
- Does the “on-call” obligation significantly limit the employee’s use of the time for personal purposes?
- How frequent are the calls? Are the calls likely to occupy most of the on-call time and will being on call therefore significantly interfere with the employee’s use of the time for personal purposes? Or are the calls only infrequent?
- Is the employee required to wear a uniform while on call?
Based on these criteria, if it is determined that the on-call time constitutes work, non-exempt employees must be compensated for all of the on-call time in accordance with the standard rates and laws for regular and overtime pay. Additionally, even if the on-call time is not considered to be work requiring compensation, any time in which an employee actually does perform work in responding to a call must be compensated.
If the employee is professional exempt status and not compensated for overtime, but is on call 24/7 with a response time of 2 hours and inability to travel, consume alcohol, and carry a cell phone at all times, then how many hours per week can they be required to work as a professional exempt status employee?
It depends on the state. We suggest that you consult local counsel.
We have a 24/7 emergency road service here in Atlanta Ga
the way it works is that we have Salesmen, Managers, and dispatchers
are on a 16-18 week cycle. We are responcible for being on call
for 1 week at a time each night starting at 5:30pm -7:30am. Now
I'm a salary employee and do not get any compensation for answering
these road service call. My tire techs get $75 per call but any
management gets nothing...... Should I be entitled to being paid
an hourly wage from 5:30pm -7:30am (14 hours) for being on call
if f get a call I must completely stop my life and or wake at any time
of night and go to my tire store.. We average 1-5 calls per week.
Please respond to my question of should I be paid hourly from
5:30pm-7:30am??
Certain managers may be deemed to be exempt from overtime requirements and may be compensated solely on a salary basis. If you are manager who is not eligible for overtime pay, then you would not be eligible for "on-call pay" either, because your salary compensates you for all the hours you work. If you are not an exempt manager, then you may be entitled to be paid for at least the time you spend responding to calls under federal law.
I am an hourly dept. head at a nursing home in a non-essential dept.(activities). I have been told prior to a snow storm to pack a bag and plan to stay overnight "in case there is a power outage" and also to make sure that I am there the next day if enough other personel doesn't come in. I was even told that I would suffer the consequences if I didn't stay and couldn't make it in to work the next day. My question is can they tell me this and do I have to be paid for "on call time"? I had to sleep in my office also because we were told that no hotel rooms would be paid for.