Employment Law/On call laws in Missouri
I was wondering what the on-call laws in Missouri are for hourly employees. An example being if an hourly employee is place on-call until 5pm. The employer states that if they are not contacted by 5pm then they have the night off. This would mean the employee potentially putting off daily activities waiting around on their employer. Is this legal? If so, to what extent?
Under both Missouri 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. All on-call time is not 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 hourly employee's overtime pay. If on-call or waiting time hours are in fact "work" hours, these will often push an employee over 40 hours for the week and into overtime, for which they are entitled to time and a half, under both Federal and Missouri overtime pay laws. This can make a significant difference in the worker's pay for the week.
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.