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On-Call Every Other Weekend. Paid or Un-Paid?

Posted by Caleb A. Miller | Aug 11, 2022 | 0 Comments

Before I was an attorney I was a Marine and there really were no days off. I understood that our beloved Corps gave me a regular check that does not change whether I work 45 days in a row and on call the next 5. There was never a real day off. Fast forward and I am working as a bartender a restaurant in Los Angeles where you may also be subject to be on-call every day that you do not work. This on-call status also required us be able to get to the restaurant on timed short notice. That doesn't seem too unreasonable but as far as I was concerned it was the general cost of being employed. Especially for a job that paid relatively well all things considered. It wasn't for many years later that I learned this is another example of predatory employment practices where employers prey upon people who have this belief and take full advantage. 

The Federal Labor Standards Act and "Waiting Time"

Under the FLSA, whether waiting time constitutes time worked depends on the particular circumstances surrounding the agreements between the parties, appraisal of the parties' conduct, consideration of the nature of the service and its relation to the waiting time. The balancing of these factors will make a determination on whether the employee was "engaged to wait" or "waiting to be engaged." This subtle difference determines whether this waiting time, or on-call time, is legally required to be paid. 

If an employee is essentially on duty, all waiting time is deemed hours worked. If an employee is off duty, periods during which the employee are completely off duty are not hours worked provided they are long enough to be used effectively for their own purpose. The purpose of the employee. For this to be the case, the employee must be told in advance that they may leave the job or duties and they will not have to commence work until a specified hour. As for on-call time, this is time that the employee is told he may, or may not have to work. The Company could allow the employee to sit there, paid, and wait for the next task to complete. Or the company could send the employee home and inform him that if there is a need for him to work, they will call him. 

Controlled On-Call Time (Standby Time)

On-Call Standby time constitutes hours worked and must be compensated IF it is characterized as "controlled" (by the employer) rather than "uncontrolled" time. Whether or not standby time is controlled depends on the facts of each case. 

If the employee is required to remain on call on the employer's premises or so close that he cannot use the time effectively for his own purposes, all such time is considered hours worked. To explain this further, we are going to look at certain geographical restrictions and with that infer based on the response time the employee is required to adhere to whether he is restricted. If an employee must respond within a given set of time, or must be able to return to the work premises within a certain amount of time, the restrictiveness of that time or response frame determines whether that time should be compensated. 

Uncontrolled Standby

If an employer has no obligation to remain on the premises but only has to inform the employer of where they will be or how they can be reached; and if he is sufficiently unrestricted so that the time can be spent primarily for their own purpose, it is not considered hours worked. For an employee to be left to do what they would like for their own purpose that will typically mean they have the authority to participate in daily activities that may require a longer response time before they get to the office. The employee is free to act on their own behalf without a restrictive control on his freedom. The balancing of factors regarding the restrictiveness of the employer favors the employee in this circumstance. 

Travel Time Restrictions

As this has been the primary focus of balance, it is important to note that the time alone is not sufficient. For example, the wage and hour division has found that standby time in a rural area of 20 minutes from the employer's business is not unduly restrictive whereas in an urban area (denser traffic) it would be. The division has stated that the mode of transportation should also be taken into consideration. For example, an employee who takes the bus or other public transportation would not have the same expectations as an employee with a company vehicle. This is determined on a case by case basis catered to the nature of the job and the individual. 

Compensation for  Standby

There is no question that the on-call, controlled standby time is compensated. However, the uncontrolled, unrestrictive standby time may be compensated per the agreement of the employer and employee, even at a rate less than the minimum wage. 

A question arises where an employee who is on an uncontrolled standby time is in fact called to return to work; is the travel time compensable? The Wage and Hour division has determined that an employee who has gone home for the day but is called to return to work must have the travel time compensated if the return destination is some place other than the regular place of business. That is, if the employee is required to return to a client's home for an emergency, that time must be compensated. If the client is returning to their regular place of business, with the current state of the law, that time is not compensated. 

Miller Wilmers APC, a California Employment Law Firm

Our Los Angeles based employment attorneys service all of California and are knowledgeable in handling these claims. If you believe you are being unfairly restricted, or placed on standby without pay, contact our office for a FREE consultation to discuss whether or not you have a claim. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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