If you use on-call
employees, it’s important to understand when you have to pay for their on-call time.
As a new case shows, if you don’t compensate them properly, you could get
clobbered by a big bill for back overtime.
On-Call Shifts Assigned
Pacific Towing employed
four tow truck drivers. On weekdays, the drivers worked regular shifts from
either 8 a.m. to 5 p.m. or 10 a.m. to 7 p.m., with an unpaid lunch period. They
were paid $9 per hour.
Hours outside the
regular shifts were covered by assigning drivers to “main” on-call shifts,
along with backup and second backup drivers. On weekends, these on-call shifts
were in 24-hour periods starting at 6:30 a.m. on Saturday and 6:30 a.m. on
Sunday. During the week, the on-call shifts were from 6:30 a.m. to 8:30 a.m.
and from 7 p.m. to 6:30 a.m.
Contacting On-Call
Drivers
During on-call shifts,
drivers were ordinarily contacted by an answering service at phone numbers the
drivers provided or by the towing dispatcher if they were driving in their
trucks. An employee who expected to be at a particular location during an
on-call shift, such as a restaurant or friend’s home, could direct the
dispatcher or answering service to call that location.
Drivers on on-call
shifts who couldn’t get to the vehicle that needed towing within 30 minutes of
being contacted were expected to refer the call to the backup driver. Main
on-call drivers received between 25 and 40 calls on weekend shifts. On
weekdays, main on-call drivers might receive between 4 and 10 calls. Backup
shifts weren’t as onerous, with perhaps 5 to 15 calls on weekends and 2 or 3 on
weekdays.
Drivers were paid for
work performed during on-call shifts according to a formula that varied based
on the kind of call and which auto insurer was involved. But Pacific Towing
didn’t pay drivers for all of their hours spent on call.
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Driver Seeks Back
Overtime
Tow truck driver Jon Delp
filed a complaint with the labor commissioner, claiming that Pacific Towing owed
him $94,217 for unpaid overtime. He said he should have been paid for all
on-call hours, whether spent responding to calls or not, because he had to stay
near his home phone to receive towing calls during these shifts, which severely
restricted his social and personal life.
Pacific Towing countered
that Delp’s restrictions were largely self-imposed, pointing out that the other
drivers had pagers or cell phones that allowed them to be contacted while they
were out, and that drivers were free to give the dispatcher or answering
service any number at which they could be contacted. What’s more, drivers were
free to trade shifts, although they were usually unwilling to do so with Delp
because he tended not to reciprocate. And, said the company, drivers could use
the company tow truck for personal use while on-call so they could stray from
home but be quickly available.
The labor commissioner
ruled in Delp’s favor, awarding him $45,099 in back overtime and interest—the
back overtime he claimed minus the pay Pacific Towing demonstrated he had
already received. Pacific Towing then asked a trial court to review the case.
The trial court stripped Delp of the award, and Delp appealed.
Factors to Consider
The appeals court
explained that whether on-call time counts as “hours worked”—and therefore must
be compensated—depends on the degree to which the employee is restricted from
engaging in personal activities. This is determined by balancing several
factors:
• whether the on-call
waiting time is substantially similar to regular on-duty work
• the frequency of calls
• whether a fixed time
limit for responding restricts personal pursuits
• geographical
restrictions imposed on the employee
• whether employees
actually engage in personal activities on these shifts
• the employee’s ability
to trade on-call shifts.
Overtime Owed
With respect to time
spent on-call as a backup driver, the court found that calls were so infrequent
that a driver’s personal pursuits weren’t substantially restricted— especially
because they could ease any minor restrictions by using pagers or cell phones,
trading shifts, or using the tow truck to conduct personal errands.
But “main” on-call
shifts did count as hours worked. The frequency of calls on such
shifts—sometimes one or two per hour—was so high as to make the on-call time almost
the same as regular on-duty work. And, one call per hour would restrict a
driver from engaging in private pursuits during this on-call time.
The appeals court
returned the case to the trial court to determine how much Delp was owed for
main oncall time.1
Practical Pointers
The key question for
determining if on-call time must be compensated is whether that time can be effectively
used for the employee’s personal purposes. For example, an employee who must
remain on your premises typically can’t use that time effectively for personal
pursuits.
Note that the time an
employee is required to wear a pager or have access to a cell phone doesn’t
ordinarily qualify as work time. But if the person isn’t effectively free to
use this time for his or her own purposes— if, for example, the person is
constantly being called or beeped—the time should be counted as hours worked.
You can find this ruling
online at www.courtinfo.ca.gov/cgi-bin/npopinions.cgi.
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1 Delp v.
Court of Appeals (Dist. 1) No. A108220, 2006 (unpublished)