Should I Be Paid For My On-Call Time?
Pay for an on-call time” is becoming a greater issue as the “on-call” practice is widespread due to the number of high-tech communication tools that allow employees to respond to work-related problems after normal business hours. Employees can be kept in contact with the technological innovations that allow 24/7 communication. This practice has generated more flexible work arrangements, as well as a few problems.
The thrust of the question about “on-call time” is this: If the employee is not allowed to use the designated “on-call time” for their benefit and enjoyment, then the time can be considered payable time. If, however, the employee has control of and use of this time for their own benefit, then it will not be counted as payable time in total. However, the courts use several factors to determine if the “on-call time” is work time and should be paid for. The following is a partial list of the key factors:
> The frequency of the calls.
> The expected response time
> The length of work time involved
> The length of work time required
> What, if any, restrictions are placed on how far the employee may have to travel.
> The ability of the employee to switch shifts.
As you can observe, “on-call” time must be assessed by each case because there is no way of implementing one rule for every case. Here are a couple of examples which will help to illustrate the differences between paid and unpaid “on-call” time:
1. An employee of a health care clinic is required to be on duty during evening and weekend hours. This duty is rotated but it requires an employee to be available to answer calls. During this period, the employee cannot engage in any personal activity, and they must be able to take a phone call immediately. The employee’s time during the “on-call” period is not their time, and they cannot use it for their enjoyment. The employee must be paid for the entirety of this “on-call” period.
2. A construction materials supply company receives calls from its customers requesting information after normal business hours. An employee is required to be available for answering these questions. However, the employee’s activities are not restricted. Compensation in this case must be determined by applying the above key factors.
A key consideration in determining employer pay liability is whether the employee is under the control of their employer. An employee can be required to sit at a job site and do nothing but be available should an issue arise. In this case, the employee must be paid for the time since their movement is severely restricted and so are the hours available for their enjoyment.
It is legal for an employer to pay different rates for different kinds of “on-call” work, but they must be paid at least the lowest wage established for the other hours they have worked during the week, but overtime pay is calculated based on the type of work they are doing in excess of their 40-hour work week.
If you, or someone you know, are facing legal issues in the workplace United Employees Law Group has answers, Call Today for your free and confidential case review. Please feel free to CONTACT US with any questions about this blog or your exact situation.
Photo Credit: Shutterstock/ Billion Photos