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Employment Law/uncompensated on call

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QUESTION: I work casual pool, part time. I submit my availability monthly and my job posts the schedule for the upcoming week every Friday. Recently, the schedule was posted and several employees were not on the schedule. An email was sent telling those employees to remain available for possible work. Did the obligation for availability end upon posting the schedule? If I have to wait for a call that may or may not happen isn't that on call without compensation? Do I have any rights? Is compulsory, uncompensated on-call legal?

ANSWER: This is not on call time. If you do not wait by the phone and are not available the company will simply call one of the other people off work to come in to work. They are simply telling you if you wish to work to be available. If you wish to find another job you are also free to do so.

Shirley

---------- FOLLOW-UP ----------

QUESTION: The company wants the employees to remain available and at the phone to be called, if needed. Isn't that being on call? If not call, what is it? They are not going down a list of employees. They are assigning work to specific employees that are not on schedule and telling them to come in. At this company coming in to work is not a request, it is a demand subject to discipline. I know that I am free to find another job, but I would like know if I have rights. I will take your answer under advisement and consult an attorney.

Answer
http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp

The below exerpt is from the FLSA department of labor website.

On-Call Time
An employee who is required to remain on his or her employer’s premises or so close thereto that he or she cannot use the time effectively for his or her own purposes is working while on-call.

Whether hours spent on-call is hours worked is a question of fact to be decided on a case-by-case basis. All on-call time is not hours worked.

On-call situations vary. Some employees are required to remain on the employer's premises or at a location controlled by the employer. One example is a hospital employee who must stay at the hospital in an on-call room. While on-call, the employee is able to sleep, eat, watch television, read a book, etc. but is not allowed to leave the hospital. Other employees are able to leave their employer's premises, but are required to stay within so many minutes or so many miles of the facility and be accessible by telephone or by pager. An example of this type of employee is an apartment maintenance worker who has to carry a pager while on call and must remain within a specified number of miles of the apartment complex.

An employee who is not required to remain on his or her employer’s premises but is merely required to leave word where he or she may be reached is not working while on-call. Next we must determine if your employee is able to use the on-call time effectively to engage in personal activities.

Although you may require your employee to be accessible by telephone or paging device, or you may establish rules governing use of alcohol or participation in other activities while your employee is on-call, he or she may still be able to use the on-call time to engage in personal activities, such as cutting the grass, going to the movies, going to a ball game, or engaging in other activities of his or her choosing.

The other consideration in determining whether your employee can use the on-call time for his or her own purpose is the frequency of the work calls received during his or her on-call time. If your employee is interrupted to such an extent the he or she cannot conduct his or her regular activities, your employee probably cannot use the on-call time for his or her own purposes. For example, if he or she is unable to finish a meal, read a story to his or her child or read a newspaper during the same on-call period, he or she probably cannot use the time effectively for his or her own purposes.

If your employee can do other things while waiting for the phone call than
Your employee's on-call time is probably not hours worked.

However, when an employee is on-call, all time spent responding to calls is hours worked.

To review the regulations on waiting time in general or on-call waiting time, click on the underlined text.

For more information, please contact your local Wage and Hour District Office.


http://www.wageandhourcounsel.com/2009/01/articles/oncall/dol-issues-opinion-let

Wage and hour divison of the Department of Labor

Posted on January 14, 2009 by Wage and Hour Practice Group

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In a December 18, 2008 opinion letter, the United States Department of Labor (DOL) determined that an employee’s on-call time did not count as hours worked under the Fair Labor Standards Act (FLSA). The opinion letter offers a helpful reminder of how on-call time works under the FLSA.

Whether on-call time counts as paid time depends on the facts of the situation, but comes down to how much freedom an employee has while on call. If an employer imposes very few restrictions on an employee while on call, the time does not count as hours worked. But, if an employer imposes many restrictions, the time may count as paid time. Some relevant factors include geographic restrictions, how much time an employee has to report when called, how many calls an employee actually receives, the ability to trade on-call duties and whether on-call duties are part of an agreement with the employer.

The employee who wrote to the DOL said he had to be reachable at all times, could not drink alcohol while on call and had one hour to report after receiving a call. He did not receive call-backs often, but his employer limited how much overtime he worked when on call and disciplined employees who did not follow the on-call restrictions. Based on those facts, the DOL determined the restrictions were not enough to turn the on-call time into paid hours worked.

http://www.flsa.com/glossary.html

FLSA Home Page

On Call. Nothing in the FLSA prohibits an employer from requiring employees to be "on call." Off-premises on call or standby time is not required to be counted as work time except under rare, peculiar and unusual circumstances.


The Department of labor governs all the FLSA wage labor laws.

I think talking to an attorney is a good idea and you can find one that will give you a free consultation if you call around. He can explain the regulations as they pertain to "on call" duties and the FLSA (Fair Labor Standards Act).

I have given you the facts above, I was not being impolite I was stating your choices and the obvious facts. These regulations are written by the Department of Labor. With or without an attorney they will be the ones that will prosecute the company if you feel your rights are violeted with the "on call" laws. They wrote the laws and they enforce them.


Shirley

Employment Law

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Shirley McAllister, CPP, PHR

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I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).

Experience

30 years in Payroll and Human Resources

Organizations
SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

Education/Credentials
PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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