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.
My boss has been putting employees on call, meaning that they have to be able to be reached and able to work if called. Should the employees be compensated for being on call, if so how many hours are they required to be compensated and at what rate? I live in Indiana.
As indicated in the original blog post, there are a number of factors that need to be considered to determine whether on-call time would be considered to be working time. You may want to look at the factors listed and see whether you think they apply. If you are not sure, we suggest that you consult local counsel, who also should be able to provide insights regarding any applicable Indiana law and regulations.
I work for an in home care agency in Idaho. My agency requires me to be on call 7 days out of every two weeks for the time that the office is closed. (Roughly, from 5pm to 9am the next morning.) The regular phone lines are forwarded to a cell phone that I HAVE to carry with me when the office is closed and I've been told that I have to answer it every time it rings. I've also been told that I can not leave the local area during these times. If I receive a call from a client, I must cover any shifts they require and work. (I am not compensated for covering shifts). If any prospective clients call, I must go meet with them. I am on salary, but it is not calculated to include on call time. With on call time, my salary breaks down to an hourly wage of $5.65 an hour! Shouldn't they be compensating me at least minimum wage for on call hours?
If you receive a salary, your company may consider you to be an exempt employee who would not be entitled to overtime pay for on-call time or any other kind of work paid on an hourly basis. There are many different reasons why employers consider certain employees to be exempt, and sometimes employers incorrectly classify employees as exempt employees when they are not. If your position were not deemed to be exempt, your employer would be required to pay you on an hourly basis for any time actually worked, whether or not it is during normal working hours, and possibly for on-call time subject to certain criteria as discussed in the original blog. If you believe that your position is improperly classified as exempt from hourly and overtime pay obligations, you may wish to consult with a local attorney.
I work for a company in Minnesota. I am paid by the hour. We are required to be on call every other week. So basically 128 hours every two weeks. We also have to be within 30 minutes from the office and have to respond to all calls within 20 minutes. We get paid for the time worked when responding to a call. We also get paid $1 per hour just for being on call.
Needless to say this places significant restrictions on what I can do with my personal time. I can't plan on doing anything during my week when I'm on call. I can't leave town either. There really should be laws against this kind of employer abuse. They are basically just saving money at the expense of their employees personal life. When I look at all the state and federal laws there really are no restrictions.
Should my employer be required to pay me minimum wage for the on call hours waiting for calls? Also is there any limit to the amount of hours a person can be required to be on call?
It would be a question of fact about whether your on-call time limits your personal use of the time so much that you should be paid. As indicated in your email below, important facts might include response time and a requirement that you not travel far from the office during your on-call time. Based on consideration of these and other relevant factors, if it is clear that you are significantly limited in using this time for your own personal purposes, it would not be sufficient for you to be paid $1 per hour and you should be paid your regular rate (or overtime if that applies). As these issues are highly dependent on the specific facts, you should consult with a local attorney who can best advise you about how the law might apply in your particular situation.