When an employee is designated as on-call, it means that even though they are not currently engaged in work-related activities, if their employer calls they must respond accordingly. Usually, the employee will be on-call for a certain amount of time, and depending on the type of job, may or may not be at the work site.
Depending on the job and circumstances, an on-call employee may or may not be eligible for special wages related to on-call duties. But if a worker feels like that these wages are illegally being withheld, what are the standards, and who can they seek out if they want to file a claim of some sort? Let’s take a closer look at on-call wage standards and how to challenge them.
When are Employees Eligible for On-Call Wages?
The first place to look for on-call wage eligibility is in the worker’s employment contract. If there is a clause addressing this issue, then the contract language controls. Sometimes there is nothing specifically in the employment contract, but company policy laid out in handbooks, guides, and other documents provided to all employees that defines an on-call payment policy.
In such cases, a court will likely apply those standards to that specific worker’s case. But if there are no contracts or company documents to reference, the two sides will usually turn to a court or an arbitrator to solve the matter.
What Are the Factors Used to Determine On-Call Pay Eligibility?
The main question that a court or arbitrator uses to determine wage eligibility comes down to the amount of control the employer may exert over the worker during the time period that are on-call. The greater the restrictions, the more likely the employee is entitled to on-call pay.
Some examples of these include:
- Type of job: Doctors, nurses, repairmen, and other jobs that require the employee to spring to action in case of an emergency are entitled to on-call pay.
- Geographic limitations: The greater the physical restrictions placed on the worker during an on-call period, the more likely on-call pay is required.
- Length of on-call period: Longer periods of required on-call time are more likely to require applicable payment.
- Call frequency: How many calls will the employee likely field during their time on-call? Many calls usually mean more pay.
- Flexibility: If the employee is unable to attend to personal matters during their on-call period, they will likely earn on-call pay.
- Length/frequency: Arbiters will also consider how many hours a worker is expected to be on-call, and how often they are expected to be on-call.
- Trade/moveable: Are employees allowed to freely trade on-call periods?
Restrictions on recreational activities: For example, are employees allowed to drink alcohol while on call.
- Contact devices: Employees use smartphones to stay in touch. On-call workers required to keep their work phone with them may not automatically qualify for on-call pay, while employees forced to give up their personal cell number for such reasons may have a better chance of arguing for such pay.
Who Governs On-Call Wage Disputes?
Most wage and hour regulations are set by the Fair Labor Standards Act (FLSA), which are enforced by the Department of Labor. If you believe that you are entitled to on-call wages that your employer is not paying, the first step is usually to file a complaint with their Wages and Hours division, which can be done on their website or in-person at one of their many regional offices.
If for some reason your claim does not fall under federal guidelines and there is a state agency that controls such matters, you can contact your state’s labor division to see if they have a reporting process that addresses your needs.
If the applicable government agency cannot provide you with any help, it may be time to seek the help of a lawyer. It is important to remember that most courts require that you first file a claim with the proper agency and go through any appeals process before considering a lawsuit. Only after those claims are rejected will courts allow the employee to file a lawsuit against their employer.
Do I Need an Attorney for On-Call Wage Issues?
Employment law is a complicated field. All too often, it is the harmed worker that is fighting the uphill battle, with their employer possessing the personnel and financial resources that may make any conflict feel totally unwinnable. That is why you need the help of an experienced employment law attorney on your side.
They will be able to inform you of your rights, guide you through any claims process, represent you in any appeals, and even fight for you in litigation if necessary. Fighting these battles alone can be lonely and overwhelming, and seeking the guidance of an attorney with such experience in your area can make a huge difference.