Ohio Overtime Law

[ohio216]

I worked as a Staffing Coordinator for a Home Health Care Company here in Ohio. I was a non-exempt employee paid by the hour. I was required to be on call every other week. While on call I would have to dispatch staff to client house, respond to employee call-offs, take new client intakes and a host of other administrative duties. The on-call schedule was from 5p-8:30a during the week and 24 hours on weekends. I was paid $30.00 per day during the week and $75 for weekends/holidays.

I have reviewed the DOL regulations regarding on-call pay and find it a little complex. Althrough, I was able to go as I please, I was limited to where I could go because the phone will ring and I would have to excuse myself because of HIPPA law I could not discuss clients medical histroy in a public area. This prevented me from going out to movies, dinner, with friends/family because of the number of calls I received daily.

I was informed that as a non-exempt employee I should have been paid OT while being on-call which I was not. In addition, my on-call check was not included with my regular paycheck as a Staffing Coordinator because the on-call check was paid weekly and the office check was paid bi-weekly. My question is should I have been paid OT while on-call and if so how do I go about collecting the past due OT? If it helps I never signed a job description for being on-call and I had to use my own personal phone while on-call.

[cbg]

I was informed that as a non-exempt employee I should have been paid OT while being on-call

Informed by whom?

The law absolutely does not say that you must be paid simply because you are on call. If you are called into work, yes. While you are doing your own thing with a cell phone or pager in your pocket, no.

Having to excuse yourself because HIPAA (NOT HIPPA) doesn't let you discuss patient information in public does not make the time magically compensable. Nor does using your personal cell phone; nor does the law require that you sign a job description or agree to being on call. If you WORKED over 40 hours a week you get overtime. If you didn't, you don't. Just "being on call" is not compensable time.

[ohio216]

I'm sorry but you are incorrect. According to reviewing the DOL website under "On-Call Pay" it clearly states "when employee is on-call he/she must be compensated for all time under the following terms..." There are two 1) "Engaged to wait" or 2)"Waiting to be engaged".

In addition, to your question who informed me? Per my documented email to the DOL the reponse I received the following response in part

"Thank you for contacting the U.S. Department of Labor National Contact Center.

Concerning On Call Pay, whether time you spend waiting is hours worked under the federal regulations of the Fair Labor Standards Act (FLSA) depends upon the circumstances. If circumstances indicate that you are engaged to wait, you are considered to be on duty and your time is hours worked. On the other hand, if you are waiting to be engaged, you are considered to be off duty and your time is not hours worked.

Relating to Overtime, for covered, nonexempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than time and one-half an employee's regular rate of pay after 40 hours of work in a workweek. When determining overtime pay, employers are not required to apply hours that were not worked, such as holiday and vacation time, toward an employees 40 hour work week".

I am waiting on a response for a more detail explanation of “waiting to be engaged” or “engaged to wait”.

Furthermore, when asked about compensation for time worked, I received the following response in part.
"All nonxempt employees under the Fair Labor Standards Act (FLSA) must be compensated for all hours worked..."

As you are aware under the LAW all NONEXEMPT employees must be paid for ALL hours worked. My question as stated above regarding OT was directed only to the time spent actually working (talking to the MD office, clients, processing intakes, employees, etc) this averages out to about 10-15 hours a week.

Simply paying an employee a flat rate for being on-call does not justify compensation per the law or gives the employer the opportunity to not abide by the law. “All time worked must be compensated” – Per DOL.

Finally, if an employee works 40hrs per week and on call 10-15 hours (working) those 10-15 hours must be compensated at OT.

[cbg]

Except that simply being on call does not meet the defintioins of either engaged to wait, or waiting to be engaged.

I am well aware that a non-exempt employee needs to be paid for all time worked, and at time and a half for all hours over 40 in a week. However, I do not agree that if you are free to go about your business as long as you have a cell phone or pager where you can be reached, that this is considered time worked.

If you think you have all the answers, however, go right ahead and make a complaint. Why did you ask the question, if you were so sure you were right?

[eerelations]

Yes, me too. I don't understand why you posted here when you thought you already had the information you needed. Why did you bother us?

[ohio216]

I'm not sure you understand my comments and or questions I stated above. Your comments continue to reference "carrying a cell phone/pager". No where in my post did I reference any concerns regarding "carrying a cell phone/pager". According to the DOL when you are a nonexempt employee and WORKING while on-call THAT TIME MUST BE COMPENSATED AS A NONEXEMPT EMPLOYEE, BECAUSE THAT TIME IS CONSIDER WORKING.

I am not disputing what you are stating, what I am disputing is your comments are not directed towards my questions.

[cbg]

Your question, as asked, was whether or not you were entitled to overtime for being on call, and that is the question I answered. If you did not make your question clear, that's no fault of mine.