Under the Fair Labor Standards Act (FLSA), you have to pay on-call workers as they wait. Well, sometimes, anyway. Here are the criteria.
The week between Christmas and New Year’s is traditionally a “stand-down” time at many businesses. A lot of employees choose to use this week to burn off remaining vacation time rather than lose it with the turn of the calendar. Offices often take on the aura of ghost towns. And even the normally frenetic stock exchanges close early.
Of course, business doesn’t really stop. Equipment still needs to run, and customers need to be served, so one solution often utilized is to have key employees “on-call,” bringing them in only if needed. That especially applies to technicians and customer service people, who are often nonexempts and have to be paid for every hour devoted to the job, even if after hours.
The question is how to legally pay these people. As they wait to be needed, are they working or are they not? Under the FLSA, do they need to be paid as they wait? Indiana employment law attorney James Jorgensen, writing at NWITimes.com, and other sources, have sought to flesh out the rules.
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The key element, says Jorgensen, is how much freedom on-call people have to live their personal lives, going where they want and doing what they want, as they wait. Here are the key criteria:
–Geography. How far can an on-call worker stray from the jobsite? The more restricted he or she is, the more likely it is that on-call time is compensable. Before cell phones and pagers, on-call people often had to be at home, by the phone. Now they can be anywhere, so the issue is less clear. That often brings it down to a matter of …
–Response Time. How long a time do you allow for on-call people to respond? That frequently spells how far away they can be. If you demand the person be on-site in 10 minutes, says Jorgensen, the time is likely to be compensable. If it’s 60 minutes, he believes the opposite is true.
–Call Frequency. How often is the person actually called? In one court case, Jorgensen reports, an employee called three to five times a day was ruled to be working and had to be paid. In another case, one called six times in a year was not deemed so.
–Uniqueness. A fourth factor relates to how many of your workers can do the needed work. If there’s a pool of employees available, and employees can trade off the on-call responsibility, there’s less evidence that any one of them is restricted personally.
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Finally, is there an agreement between you and the worker about on-call responsibility … one that states your desire for them to have maximum freedom when not at work? The more you seem willing to let employees use their off-hours as they please, the less likely it is that you’ll wind up paying for them.
CMHA a Federal HUD contractor ( lawyers charged 20,000 dolars ) upheld as politically correct , tangibly disciplined coerced on call not on duty 128 hours ( hours employed uncompensated ) to prearange alternate care they anticipated family associated disability as insubordination . CMHA gave days off without pay for punishement in that instance having actually worked 7 callbacts . A mental codition exercising rights treated as insubordinate was was made worse . Fighting for rights they levied more pending charges with refusing callback in an instant disabled by maltreatment having associated disabilities . I was disabled from duty by CMHA malfeansance .
If a person is on call is the drive time to the job site considered work time?? In the case of a utility worker on call, the area that needs repair could be an hour away fromt thier home.
We are required to do mandatory on-call of 10 days per 6 mo. shift. We are required to remain with in a one hour radius. But, we live in a small town that is 2 hours drive from any larger city. I am a competitive equestrian and have my horses in training at a facility 2 hours away. I am unable to use my days off to care for, ride and train my horse when on call. Basically, I am unable to use my days off in the way I would normally use them when on-call. My employers seems to think I shouldn’t be in training or have a hobby requiring me to leave town on my days off. I am confused as the
Standard states if I cannot use my day off as I normally would or waiting to be called, I should be paid. The employer also calls every other employee on their off days, at 0600, to see if they will voluntarily come to work before they will call me, the assigned On call employee. So I’m waiting but don’t get called because they say “on call are only for emergencies”. So do I waste my day off waiting to be called in when they don’t or just go about my day off and face the consequences if they should by some slim chance call me?
My usual “day off” hobbies include training my horse and taking lessons as well as competing outside of our smaller city. When I am the assigned “on call” employee, I cannot use my days off to enjoy my hobbies. My horse is stabled 2 hours away and we must be able to get to work in 1 hour. So am I to be compensated? Do I just give up my day off to wait for a call when 90 percent of the time I never get a call?