Should Employees Be Paid for On Call Work?

On call work is a common way that retail employees are often taken advantage of in the workplace, which allows employers to cancel shifts without pay.

Using on call scheduling lets retailers send staff home without pay if they are deemed unnecessary for covering the shift, but also requires that staff keep their schedule free to come in during any schedule hours that they may not even work.

On call work is hotly debated by employers, employees, and the Department of Labor Wage and Hour Division, which created and enforces the Fair Labor Standards Act (FLSA).

There is disagreement over whether or not employees should be paid for on call work that they are sent home from, and hinges on interpretations of the legal definitions of terms like on call work, on call scheduling, and on call pay.

FLSA Background

The Fair Labor Standards Act, enforced by the Department of Labor, regulates the fair treatment of employees. Employers who have violated FLSA rules can be held liable for unpaid wages or unpaid overtime.

These issues are often more clear. However, on call pay is still in debate.

On call work is a complicated and murky aspect of wage and hour law. While the general rule for wage payment is that employees are paid for the work they actually perform, they can also paid for the time they spend waiting to perform that work.

An obvious example of this is a firefighter who does not spend every minute of their worktime fighting fires, but instead wait to perform such work when an emergency call is made while still getting paid.

Similarly, on call work can sometimes necessitate on call pay. According to the Department of Labor Wage and Hour Division, if an employee “is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes,” then the hours that employee spends waiting to work are considered work hours and should be paid accordingly.

However, the part where it gets tricky is that, also according to FLSA, an employee who is “merely required to leave word at his home or with company officials where he can be reached” after regular working hours is not entitled for on call pay.

Determining whether or not on call work should be paid involves a few considerations. These include:

• Is the employee required to remain on work premises?
• If allowed off premises, how far may the employee go during on call work hours? Are there excessive restrictions placed on how far the employee can go?
• Is the employee required to do more than simply leave their contact information with their employer?
• How often, for on call employees, is the employee actually called in to work?
• Is there a specific time for employees to receive calls, and is the amount of time in which they have to respond restrictive?
• Can an on call work employee trade off their on call shift with another employee?
• While on call, can the employee freely use their time for personal activities, or are they unduly restricted in their actions during on call work hours?

There are other facts that can be considered during on call work cases like this to determine whether or not an employee is entitled to on call pay.

On Call Work Lawsuits

Abusive scheduling practices against on call work employees can make it impossible for employees to make a steady, minimum-wage paycheck. These practices can also make employees’ lives difficult outside of work, complicating schooling, childcare, and social life.

If you have worked for an employee that may have abused the on call work system or otherwise violated FLSA, you may be able to file an on call work lawsuit.