Employment Law/on call compensation
I have a question about compensation for being on call for my current employer.
My employer is a software company. About 2 years ago they started a 24/7 support availability for some of our customers. We have a support phone that we use. We used to swap the phone between our team of 4, and would swap weekends etc. We used to get a day off per weekend on call.Management decided days off was not a good thing and last year 2 of the people in my team left, so the phone was given to me Full time. The conversation went something like it would be ideal if you have the phone all the time. After this I have asked for extra compensation or days off and have Not been given any consideration. I am a salaried and not really consider myself well paid and not longer supervise anyone.
Are there any status in the law Federal or for Georgia State that I could used to get any additional compensation? I know this state is at will employment, but it's really hard to find employment and can not quit just like that. The company does require employees to be in the office at 9:00am and have to call someone when I am late. Also, seems that every time I want a Friday or Monday off I have to make it a point that Saturday and Sunday someone else needs to get the phone, which seemed to annoyed my supervisor.
Also, seems vacation accrues on regular 40 hour week no matter how hours any of us do? This one is an extra...not sure what to think off...
Your question regarding compensation for time spent "on-call" is a common one - I just answered a similar question yesterday on this site.
Under both Georgia wage laws and federal law, determining whether hours spent on-call are hours worked (for which you must be paid) must be done on a case-by-case basis. On-call time is not, in many cases, considered to be hours worked. The key issues are whether or not the employee is able to use the on-call time effectively to engage in personal activities (going to a movie or dinner, watching TV, sleeping, etc) and the frequency of the calls the employee gets while on-call. An employee who is required to remain on call and stay on the employer's premises or so close by that the employee cannot use the time effectively for their own purposes is "working" and must be paid for their time. An employee who is not required to remain on premises, but is merely required to be reachable and responsive generally is not considered to be working while on call.
The U.S. Department of Labor and case law have provided a number of factors to evaluate in determining if on-call time should be considered "work", including:
required response time;
frequency of calls during the period;
use of a cell phone/pager;
extent personal activities are actually engaged in during on-call time;
provisions of any employment agreement as to treatment of on-call work;
length of time employee is on call (i.e. periodic duty versus continued on-call status);
degree to which employees can trade on-call responsibilities; and
whether the nature of the work prevents an employee from engaging in certain activities, such as drinking alcohol, while on call.
A related issue is that of Waiting Time. Whether waiting time is hours worked under the wage and hour laws also depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a fireman who plays video games or reads a book while waiting for an alarm is working during such periods of inactivity - he has been "engaged to wait."
An important result of the determination of work vs non-work time is the impact it has on an employee's overtime pay. If on-call or waiting time hours are in fact "work" hours, these will often push a non-exempt employee over 40 hours for the week and into overtime, for which they are entitled to time and a half, under both Federal and Georgia overtime pay laws. This can make a significant difference in the worker's pay for the week.
You mention that you are paid a salary so receive no extra compensation for the time spent on-call. Just because you are paid a "salary" does not necessarily mean that you are "exempt" and not entitled to overtime pay. To be exempt from the overtime pay requirements, you must have BOTH a salary that exceeds $455/week and job duties that fall under 1 or more of the exemptions to the overtime pay laws. Since you work for a software company, I should mention that there is a specific exemption that applies to certain computer employees - here is a link to more information on that exemption: http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.pdf
This fact sheet also contains links to information on the exemptions for executive, administrative and professional employees, and more information on the salary basis requirement.
You may also want to contact the U.S. Department of Labor wage and hour division at [1-866-4-USA-DOL / www.dol.gov] for additional information or guidance.
I hope this information is helpful.