On-Call Work in California May Violate Wage and Hour Laws

The rules for paying hourly employees in California for on call work can be confusing, especially since they differ from federal regulations.

A common on call scenario might be this: A maintenance worker who works a regular day shift during the course of a 40-hour workweek, but the employee must be on-call during the evenings and weekends to respond to any issues at the facility that runs 24/7.

Such an employee is often required to respond to a call within 15 minutes, and if there is an emergency at the facility, they must report there immediately.

Some common questions in a scenario like this are:

• Should employees be compensated for the time spent carrying the cell phone or pager during on call times?
• If the employer gets called to the facility for an emergency, should there be a minimum amount paid to the employee?

Federal Definition of Hours Worked

Under the federal Fair Labor Standards Act (FLSA), hours worked include “(a) all time during which an employee is to be on duty or to be on the employer’s premises or at a prescribed workplace and (b) all time during which an employee is suffered or permitted to work,” in order to be entitled to pay.

California’s Definition of Hours Worked

The definition of hours worked under the California Division of Labor Standards Enforcement is different from the FLSA.

In order to be entitled to pay in the Golden State, a California worker is subject to “the control of the employer” or “all the time the employee is suffered or permitted to work.”

Work in either category must be counted as hours worked.

Standby or Waiting Time at Place of Employment

Under California and federal law, the worker must be compensated for waiting at the workplace, even during just waiting to respond to emergency calls.

The standby rate for work may be set at a different rate, but it must be set before the work is performed, and must be at least minimum wage, which is $9 per hour in California.

Uncontrolled Standby

If the standby time is not under the control of the employer, and the employee is free to spend his time as he or she chooses, this time does not need to be paid.

Controlled Standby

If the employer controls employee time so strictly that the employee cannot come and go as he or she pleases, or cannot pursue individual activities, the employee may be considered to be on controlled standby.

A California Supreme Court ruling helped to determine the amount of control the employee is under. The conditions considered for standby time include:

• Whether there are excessive geographical restrictions placed on the employee’s movement
• Whether the frequency of calls was duly restrictive
• Whether a fixed time limit for responding to calls was duly restrictive
• Whether employees could easily trade on-call responsibilities
• Whether an employee engaged in personal activities while on call
• Whether the on-call waiting time was spent primarily for the employer/business

The overall impact of the various conditions are considered together to determine how substantial the employer control is over the employee. This in turn will determine if the employee qualifies for compensation under controlled standby time.

Being required to carry a cell phone or pager is not enough to require that the employee be paid for the time the device is on.

Response and Reporting Time Compensation

Time responding to a call is eligible for compensation, including the time spent on the phone call or computer, and employees must keep accurate records of time spent. However, responding to calls that take a minute or two during the whole day do not have to be paid.

If an employee is required to report to the place of employment, California reporting time rules may apply. A summary of the reporting time pay rules state:

• Employees who report but spend less than half of their usual schedule working should be paid for half the day’s work. Depending on the situation, some may be paid at the regular rate, some may be paid at minimum wage.
• If an employee is called to report a second time but works less than two hours, he or she must be paid for two hours of work at regular pay.

There are some exceptions, such as public utility failure, natural disasters, when there are threats to employees or property, or when civil authorities deem work should not be continued.

On-Call Lawsuit Information

The rules for on-call laws can be very confusing. If you believe you have not been fairly compensated for on-call time, you may have a legal claim. Lawyers can assist you by explaining how the on-call labor laws apply to your unique situation.