Can Your Employer Keep You On-Call Without Pay | Aiman-Smith & Marcy
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Can Your Employer Keep You On-Call Without Pay?

The answer is: It depends. Although it might seem unpleasant to be stuck on call, your employer may not need to compensate you.’ Part of the distinction is the rather unclear “Waiting to be engaged” versus “Engaged to wait” terminology. To put it in simple terms, you are entitled to compensation if any of the following are true:

  1. You are required to be on or near your employer’s premises. In that case, it is the same as a receptionist who has nothing to do between phone calls or visits. Even if your employer allows you to use the time in your own pursuits, you are still “working.”
  2. Your contract or bargaining agreement specifies that you are paid for on call time.
  3. Your employer places restrictions on where you can go or what you can do when you are on call. For example, if your employee expects you to not use your cell phone for other calls so you are able to respond immediately.
  4. You are called frequently – in some cases on-call frequency can be so high that it is equivalent to working. If this happens regularly, you should receive compensation.
  5. You are required to respond immediately. 20-30 minutes is reasonable, if you are expected to answer a page or text right away, then you may well be entitled to compensation.
  6. You are required to wait in a specific location that is not the office. For example, a messenger who has to wait for the client to give them the package is entitled to pay for that time.

There are a few things which have been definitively ruled not to trigger pay.

  1. If you are exempt, then you are not entitled to compensation for on call time (unless your employee has some more generous policy).
  2. A requirement to remain sober has been ruled not to trigger compensation, unless there are significant other restrictions.
  3. Merely having to carry a pager and report within 20-30 minutes has been ruled not to trigger compensation.
  4. If you have the ability to trade off your on-call duties with another employee, this can make it less likely that you are entitled to pay.

California tends to be stricter than other states, and courts are more likely to rule that the employee is “under the control of” the employer.

Once you receive the call, however, you are required to be paid for your travel time and any time worked. Additionally, California has a “reporting time” law which means you are entitled to be paid for half of your usual shift, minimum two hours, if you report to work but work for less time, with two hours for a second call. This does not apply if you are being paid to be on-call, but at a lower rate (which is not uncommon, although the rate still has to be at least minimum wage).

The basic standard, though, is whether you can do other things while on call or whether the restrictions are so burdensome that, for example, making dinner, attending your child’s event or otherwise using your time for yourself become impossible.

Being on call can be a pain, but whether you are entitled to any kind of compensation depends on how much of a pain it is. If you are not sure whether your employer’s demands on you when on call trigger the need for compensation or paid standby, then you should contact an employment lawyer.

Aiman-Smith & Marcy are experienced employment lawyers. We handle all kinds of employment issues such as paid overtime, required breaks and, of course, compensation for time spent on call. If you need our help, then call us for a consultation – or just for advice on whether you have a case against your employer or not.