In addition to regular work hours, some employers require their workers to be “on-call” for certain period of time. When on-call, the employee is usually not performing any work-related tasks. For instance, they may be at home during on-call time. If they are called to work when on standby, they are usually required to report for work or respond accordingly.
Depending on the nature of the employment, employees may be eligible for pay while they are on-call. In order to determine eligibility for on-call wages, a court will usually consider factors such as the amount of control that the employer exercises over the worker while on call, as well as the degree of interference with the employee’s personal affairs.
When is an employer required to pay an employee for on-call time?
The first thing that a court will look to when addressing this question is whether on-call wages are addressed in the company policies or in an employment contract between the worker and employer. If the policy or contract specifically contains on-call provisions, then the court will usually honor what is contained in the employment agreement.
If no formal agreement exists regarding on-call time, then the court will have to conduct an analysis. Basically they are trying to determine whether the employer’s control over the worker interferes with their personal affairs so much as to require compensation.
For example, if the employee requires that the worker remain nearby the work premises so that they cannot leave, then they may be required to pay them wages for their waiting time. On-call pay is almost always required when the employee is residing at the actual worksite.
What factors will a court use to determine on-call pay eligibility?
The court will determine eligibility using the following factors:
Whether the employee is restricted to a particular geographical location
How long the required response time is
The frequency of work calls during the on-call time period
Use of a paging devise
How much the employee is able to attend to personal activities during on-call time
Length of time that the worker is on-call (i.e., periodic/cyclical on-call duty versus continual on-call duties)
Whether other employees can trade or exchange on-call shifts
Whether the on-call prevents the employee from engaging in various activities, such as drinking alcohol
Using these factors, the court will then render an analysis to determine the degree of control that the employer is able to exercise. Any combination of the above factors might yield different eligibility results.
So, for example, if the employee is required to stay on or near the office without being able to go home, then they might be eligible for pay. However, if they have been allowed to conduct their personal affairs away from the workplace, then they are likely not going to be paid even though they are on call.
What if my on-call wages are being withheld?
Employers are required to compensate their workers for time put in as work. Wages are covered by federal laws such as the Fair Labor Standards Act (FLSA). If your on-call time is considered to be “working time”, then you may be entitled to remedies. You will likely be required to file with an administrative agency first before filing a lawsuit. Be sure to compile the necessary documents such as receipts, pay stubs, work logs, and a written report of the incident(s) involved.
Do I need a lawyer for on-call employment disputes?
Workplace disputes are serious and require the attention of a professional. You should contact an attorney immediately if you have performed your on-call duties but have not been compensated fairly. A lawyer can help review any contracts that you have with your employer, and they will be able to determine your eligibility for pay under the laws of your state.