On-Call Pay

System

Hi there,

We want to set up an on-call schedule for our Information Systems department (probably one-week at a time). Unfortunately, the personnel are non-exempt.

If we restrict the on-call personnel from leaving the area within a certain radius, and do not permit them to drink, etc. (set restrictions on them), what are we obligated to pay them while they are on call? We would make sure that they have an alternate should something come up and they need to leave out of town etc.

I know two people who are on-call status, one that works for Boeing and the other that used to work for US West. They both are paid approximately $20.00 while on-call and received a minimum of 3-4 hours' overtime pay if they are called in. Is this typical? Are we legal if we set something like this up?

Please advise at your earliest convenience.

Thanks so much,

Rita M. Reed
Qualstar Credit Union
Human Resources Manager
425/460-3804 - Direct
425/460-3934 - Fax
[email]ritar@qualstarcu.com[/email]

Hatchetman

FLSA primarliy address when you may have to pay non-exempt emplyee for on-call time. Your state law may also address that.

Essentially, whether it will be considered work time, and payable as such, depends on the degree of restriction. There is no "bright line" to determine at what point on-call status is so restrictive that it has to considered as work time.

You identifed some of the factors that need to be considered.

Generally, FLSA requires that on call time be compensated as work time if is spend predominately for the employer's benefit, so that the time cannot be used effectvely for the employee's own purpose. The amount of "freedom" the on-call employee has is certainly a consideration. The frequency of calls impacts that concept.

How quickly an employee has to respond is another factor to consider. The shorter time time period of course the more likely it will require the on call time to be considered work time. Where the cut off point is depends again on how it impacts the ability of the emplyee to use that time effectively for his or her own purposes. So, you would have to consider commute time into all of this. But if the employee can respond by phone that may change things.

In short, the determination of whether on call time should be compesnable as work time or not is a case-by case determiantion considering the entire situaiton.

On-call time is tersely described in the Code of Federal Regulations, volume 29, Section 785.17:

"An employee who 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 is working while "on call". An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))."

Use the US Department of Labor's "e-Law Advisor" for FLSA. There is information on it regarding "On-Call Time"

[url]http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp[/url]

When you access the pages on "On Call Time" at DOL website, you'll see that the agency does say that an employer can still restrict alcohol while the employee is on call without it result in it being considered work time.

The real guidances on what constitutes on-call time in given situations come from court cases where actual situations are looked at. As I am not a lawyer, my case references are minimal, so you should talk to your legal counsel if it is not that clear either way whether the on-call time should be compensable as work or not in your situation.

Even if it doesn't have to be paid as work time, you may want to pay some small hourly rate to induce employees to participate or to remain or to keep employee morale up since the company is invading their off time to some extent, such as 50 cents an hour, $1, $2, or so.

And, of course, your state law may even be more definitive in the employee's "favor" than FLSA.

State law may address what happens when an employee is called back to work as a result of being "on call" -- if there is a minimum guarantee of hourly pay for the call back -- e.g., 2 or 4 hours of pay. So, you should check that as well.

System

Wow, thank you so much for your response. This is vey helpful.

Pork

Rita: Turn to your "free copy from Wage & Hour regioan office" named: Part 785--INTERPERATIVE BULLETIN ON HOURS WORKED and subpart C--Application of Principles on WAITING TIME and then section 785-17 and there you will find the written words required to anwer your concerns.

How much you pay starts at minimum wage and goes up from there, depending on your company's need for this individual to be available for work no matter where he is located. Our automotive night shift person fits into this category and we require him to stay on call for the entire night. He responds by pager or by radio to any call for help by a broken down vehicle. We not only pay him for every hour at $9 dollars and we add a $1 dollar premium pay for all hours worked after 7:00 PM to 7:AM whether he has any vehicle down or not. He can even sleep during the evening, as long as there is no work to be done and he can respond to calls over the pager and radio,

Hope this helps! Pork

System

Thanks so much for your response, Pork. As far as the "free copy," how do I go about getting this?

Sincerely,

Rita M. Reed
Qualstar Credit Union
Human Resources Manager
425/460-3804 - Direct
425/460-3934 - Fax
[email]ritar@qualstarcu.com[/email]