Are On Call Shifts Legal?

If you work in the retail, fast food or hospitality industry, you might be subject to on call shifts. Employees question the legality of such shifts that rob them of time without pay.

Employees who work on call shifts might be owed money for their on call time.

What Constitutes an On Call Shift?

An on call shift usually means an employee must call the employer prior to the shift starting to find out whether or not they must report to work that day.

When an on call shift requires employees to be onsite at the office or workplace in case they are needed, the employees must be paid for the time spent there. Any employee who must be at the work location is unable to use the time for personal use, which means the time must be considered as time worked.

Why Would an Employee Agree to an On Call Shift?

Many of the jobs that require employees to be on call are in the retail, fast food or hospitality industry where workers are paid minimum wage. Employees feel they have no choice but to keep their schedules available during the on call shifts even if they do not receive payment because the impending shift is canceled.

The employees do not want to risk losing their jobs because they refuse to honor an on call request. But whether or not they work the shift, being on call prevents the employee from using that time for other purposes like school, child care, or a second job.

If I’m at Home Before an On Call Shift, May I Do Whatever I Want?

Some employers may place restrictions such as:

• No drinking of alcohol
• Must be accessible by phone

These types of restrictions when you’re on call do not automatically qualify you for compensation.

Employees who are unable to complete household chores or keep a doctor’s appointment because they are often called during their on call shift should be compensated for their time. In the on call shift situation, the time spent traveling to and from the work site qualifies as time that needs to be paid, too.

Are Laws Pertaining to On Call Shifts the Same in Every State?

No, they are not.

The state of Oregon enacted a new Employee Work Schedules Law that became effective July 1, 2018, that requires employers to give employees written work schedules at least seven calendar days before the first day of work. The schedule must run through the last day of the posted work schedule in effect at the time of delivery.

If an employer changes a written work schedule without advance notice of at least seven calendar days prior to the beginning of the workweek affected by the change, the employer must the employee an additional hour of pay in addition to regular pay earned when:

• The employer adds more than 30 minutes to the shift; or
• The employer changes the date or starting and stopping time with no loss of hours; or
• The employer schedules the employee for an additional shift or on call shift.

Employees who wish to be subject to on call shifts can volunteer to be placed on such a standby list, and won’t be compensated for work schedule changes necessitated by unexpected customer volume or unexpected absences of fellow co-workers.

In California, the California Court of Appeal determined that any employee scheduled for an on call shift could be owed wages for that time even if the employee did not report physically to the work site. The court decided that if “the employer directs employees to present themselves for work by telephoning the store two hours prior to the start of a shift, then the reporting time requirement is triggered by the telephonic contact.”

Join a Free On-Call Shift Lawsuit Investigation

If you work or are scheduled for on-call shifts in retail or fast food in Oregon or California, you may qualify for this on-call worker class action lawsuit investigation.

Learn More

This article is not legal advice. It is presented
for informational purposes only.

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