Results 1 to 2 of 2
  1. #1
    Join Date
    Aug 2012
    Posts
    7

    Question On Call Compensation in California

    I have a few questions about "on call" compensation and laws in California:

    A tech support company has hourly employees that work M-F 8am-5pm. They get overtime for any hours worked over 8 hours in a day / 40 hours in a week. The company is wanting to implement a rotating schedule where each tech would be required to be on-call during the off hours, for 1 week at a time.

    They would be required to carry a company cell phone, respond to calls within 15 minutes and provide remote or onsite support at the client's business if necessary. This restricts the employee on where they can go and what they can do, during non-paid hours. They can't go out of town or to areas where cell phone service is bad. They can't have a few beers at home, because they might be required to go onsite and can't have alcohol in their system. If they go out to dinner or to a movie, they risk having to leave in the middle of it and not get to enjoy what they paid for. Etc.

    It would also require paying for an Internet subscription service at home.

    My questions are:

    1. Can the company be required to pay some kind of compensation for being on-call (whether calls happen or not) for the added restrictions during this non-paid time?
    2. If the tech gets a call after-hours and has to work (has already worked 8 hours that day) are they supposed to be paid a 2-hour minimum at overtime rates?

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: On Call Compensation in California

    Per the Department of Industrial Relations,
    Quote Quoting “Call Back” and “Stand By” Time
    An employer is obligated to pay the wages of an hourly employee for all time that the employee is under the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. In Section 2 of Industrial Welfare Commission Orders 4 and 5, there is a modified definition of hours worked for employees in the health care industry.

    On-call or standby time at the work site is considered hours worked for which the employee must be compensated even if the employee does nothing but wait for something to happen. “[A] n employer, if he chooses, may hire a man to do nothing or to do nothing but wait for something to happen. Refraining from other activities often is a factor of instant readiness to serve, and idleness plays a part in all employment in a stand-by capacity.” (Armour & Co. v. Wantock (1944) 323 U.S. 126) Examples of compensable work time include, but are not limited to, meal periods and sleep periods during which times the employees are subject to the employer’s control. (See Bono Enterprises v. Labor Commissioner (1995) 32 Cal.App.4th 968 and Aguilar v. Association For Retarded Citizens (1991) 234 Cal.App.3d 21)

    Whether on-call or standby time off the work site is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable “hours worked.” These factors, set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include whether there are excessive geographic restrictions on the employee’s movements; whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and whether and to what extent the employee engages in personal activities during on-call periods.

    Travel time is considered compensable work hours where the employer requires its employees to meet at a designated place and use the employer’s designated transportation to and from the work site. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575)
    Quote Quoting Berry v. County of Sonoma (1994) 30 F.3d 1174
    In Owens, we provided an illustrative, non-exhaustive list of factors to be analyzed in determining the degree to which an employee is free to engage in personal activities while on-call. Id. at 351. It included:
    (1) whether there was an on-premises living requirement;

    (2) whether there were excessive geographical restrictions on employee's movements;

    (3) whether the frequency of calls was unduly restrictive;

    (4) whether a fixed time limit for response was unduly restrictive;

    (5) whether the on-call employee could easily trade on-call responsibilities;

    (6) whether use of a pager could ease restrictions; and

    (7) whether the employee had actually engaged in personal activities during call-in time.

    Id. (footnotes omitted). Because "[n]o one factor is dispositive," id., a court should balance the factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is so restricted that he is effectively engaged to wait.
    Generally speaking, on-call time is considered compensable work time if the time is spent primarily for the benefit of the employer and its business, and the key factors usually are (a) the parties’ agreement, and (b) the degree to which the employee is free to engage in personal activities during on-call periods.

    1. Sponsored Links
       

Similar Threads

  1. Compensation and Overtime: 24 Hour On-Call - What Compensation Do I Get
    By fedup222 in forum Employment and Labor
    Replies: 10
    Last Post: 08-09-2012, 02:25 PM
  2. Compensation and Overtime: On Call Compensation for a Non-Exempt Employee
    By jaywhite778 in forum Employment and Labor
    Replies: 1
    Last Post: 06-06-2011, 08:04 AM
  3. Compensation and Overtime: On Call Compensation and Overtime
    By Zimba in forum Employment and Labor
    Replies: 3
    Last Post: 04-04-2011, 08:00 PM
  4. Compensation and Overtime: On Call Compensation
    By agentspy in forum Employment and Labor
    Replies: 1
    Last Post: 07-08-2008, 07:19 PM
  5. Compensation and Overtime: Compensation for Being On Call Over The Weekend
    By bust3r in forum Employment and Labor
    Replies: 1
    Last Post: 09-28-2007, 12:47 AM
 
 
Sponsored Links

Legal Help, Information and Resources