Every manager and team handled the transition to remote work a little differently. Some adapted easily, their workflow almost unchanged except without hellos over the morning coffee pot. A few even thrived, finding a better workflow from home than they did in the office. Many managers, however, floundered in the face of leading their teams remotely during the crisis. Professionals were equally lost at sea, sent home with whatever random collection of computers and equipment they might already have. Some managers disappeared, some went mad with micro-managing power. However, the most damaging unforeseen trend of remote work is the expectation of always being on-call for work. Without appropriate pay.
“I know you’re there” “It’s not like you have anything else to do” “Hey, could you just do this really quick for me?”
These are the messages of a pushy manager who wants work outside of your working hours. If you are non-exempt and paid by the hour, the hours you are clocked in for matter. The time you spend on work tasks matters. And if you’re working off-hours just because you are “available” – and if there would be consequences for not answering – you may really be “on-call” and must be paid for your time under employer control. Teams let a lot of illegal ad-hoc measures fly during the initial crisis, but it’s time to build a legal and properly compensated “new normal” or we will see a slide backward in employers taking advantage in private and obscured digital workspaces.
The Always-On-Call Attitude of Remote Work (is Illegal)
For many, remote work introduced the ability to work during your best hours, not limited to office hours. And with a manager who assigns the correct amount of work and/or allows flexible hour clocking, this works out great. However, the dark inversion of remote schedule flexibility is the always-on-call attitude some (surprisingly many) managers take when their team goes remote.
Here in the state of California, on-call / standby time must be paid the same wage rate, including overtime, for every hour that is not your own.
Blurring the Lines Between Work and Personal Time
Many managers have boundary issues, barely held in check by the work-home separation of your typical workplace. When you are working remotely from home – and are mandated by lockdown to be home – suddenly all of your time becomes their time. You were “available”, weren’t you? You were home, and so was your work computer, so you must be available for work. Answer a question. Do this task “just really quick” for them. Oh, and stick around to finish that project, since you’ve got so much free time now!
In truth, you know you do (and did) not have free time. Kids at home, partners also working from home, sick relatives, and the economic crash made “working from home’ nothing like the half-vacation imagined by pushy time-claiming managers.
Where is the Legal Line Between Pushy and On-Call?
So you are working remotely and your manager sends you messages and requests all the time. Where is the line between being pushy and illegally placing you on-call without pay?
1. Expectation of Response
First, do you absolutely need to respond to your manager’s emails, messages, and texts right away? Are they asking for answers “right now”, calling your phone, or demanding immediate Zoom meetings? If so, you are probably on-call.
However, some managers send messages all day, but are fine if you answer them all at once when your next shift starts. Determine if you are able to set some response-time boundaries, even if messages come in at all hours.
2. Discipline for Non-Response
Next, determine if there are consequences or just expectations. Not all managers know how to handle remote work, and some are insomniac workaholics who are overworking themselves without a commute. Are they just being pushy, or are there (threatened or real) punishments for not responding during your off-hours?
If you can be disciplined for not responding during off-hours, you are legally on-call and must be paid for the time that isn’t your own.
3. Your Ability to Make Plans
Lastly, can you make plans with your off-hours and expect to keep them? We often mention the Birthday Party example as an easy rule of thumb. Can you promise to be at someone’s birthday party and attend for several hours without expecting to be called away for mandatory work? If not, you are likely on-call and eligible for overtime and backpay from unpaid on-call hours.
Are You Working Remotely On-Call Without Pay?
If your manager is forcing you to report in, answer questions, or perform tasks during your off-hours of remote work, you are officially working on-call without pay. This is an illegal practice, though many new-to-remote managers and employers may not realize what they are doing. Here at Aiman-Smith & Marcy, we can help you defend your employee rights in all workplace situations, including remote work teams. Contact us to discuss your unpaid on-call hours and what can be done to correct your employer and get back that value for your time.
