Always On Call? Maybe You Should Be Paid More
It used to make you feel important to be summoned back to work by that beeper. But now, your resentment festers with each bleep. Can the law help?
Admit it. At first, wearing that beeper made you feel important. You even felt a little smug when it summoned you back to work -- although it meant missing the end of the latest Star Wars movie. But as time has gone by, you resent feeling tethered to the workplace by that beeper. And your employer refuses to unleash you.
You and your employer are not alone in locking horns over the issue. Disputes usually boil down to the slipperiness in the definition of control and use of time. If the occasional beep beckons you only to call in to give advice, but you are otherwise free to spend your time any way you want, your employer need only pay for the time you spend answering the beeper. However, if your employer insists that you be available to return to work on demand and puts constraints on your behavior between beeper calls, you may be entitled to compensation for your on-call time.
Money Might Help
A growing number of employers are paying on-call premiums -- or sleeper pay -- to workers who agree to be available to be reached outside regular worktime and respond by phone or computer within a certain period. Some plans pay an hourly rate for the time spent on call; some pay a flat rate.
If your employer requires you to be on call but does not require you to stay on the company's premises, then the following two rules generally apply.
- On-call time that you are allowed to control and use for your own enjoyment or benefit is not counted as payable time.
- On-call time over which you have little or no control and which you cannot use for your own enjoyment or benefit is payable time.
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Jack works in an office, 9 to 5, Monday through Friday, as a client services representative for a funeral director. His employer also requires him to be on call at all times in case a business question arises -- and it furnishes him with a message beeper. Jack can spend his free time any way he wants. All his employer requires him to do is to call the office as soon as is convenient after his beeper registers a message, so Jack's on-call time is not payable time.
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| Example 2: |
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Elizabeth is a rape crisis counselor with a social service agency. The agency that employs her must constantly have someone with her expertise available. During weekends when Elizabeth is the on-call counselor, she must remain home near her telephone at all times. She cannot leave her apartment except in response to a rape report, cannot drink any alcohol or take any drugs (legal or otherwise) and must be prepared to leave on a moment's notice if she is called. A court could well find that Elizabeth's on-call time is not hers to control and enjoy and require her employer to pay her for it.
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Unless there's an employment contract that states otherwise, employers are generally allowed to pay a different hourly rate for on-call time than they do for regular worktime, and many do. The employer need only make sure that the employees are paid at least the minimum amount required under wage and hour regulations.
| Example: |
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A hospital emergency room has a policy of paying medical technicians a high hourly rate when they are actually working on a patient, and just the minimum wage when they are merely racking up on-call time on the hospital's premises. If such a technician were to record 20 hours active time and 20 hours on-call time in one week, the law requires only that he or she receive the minimum wage for the 20 on-call hours.
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The courts have generally approved such split-rate pay plans for the purposes of both the minimum wage and overtime requirements if there are marked differences in the types of work performed and the employer has clearly informed employees that different wages are paid for different types of work.
| When Sleeper Pay Becomes an Employer's Nightmare |
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Most companies responding to a recent study indicated that they pay employees a premium -- either a flat sum or hourly rate -- for on-call work. And a whopping 42% reported that they pay on-call pay to their employees who are otherwise considered exempt from wage and hour laws. While the pay practice sounds well meaning, it could be risky business for employers, especially those who compute and provide the extra compensation based on the number of on-call hours worked. It opens the possibility that exempt employees would in effect lose their exempt statuses -- leaving the employer liable for past and future overtime pay.
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To read and printout a copy of the Form please link below.
Questionnaire: 401(k) Plans
You can download a free copy of Adobe Acrobat Reader at
http://www.adobe.com/acrobat/readstep.html
Copyright © 2002 Nolo
Disclaimer
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
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