Should I Be Getting Paid When I’m “On Call”?
By Scaringi Law
Some hourly employees are required to work an “on call” shift from time to time. On call shifts frequently include overnight or weekend shifts, or other time outside of the employee’s usual hours of work. For example, many apartment communities employ a staff of maintenance personnel who make routine repairs during the day but require at least one maintenance employee to be on call at night and during the weekend to address emergency repairs. Are these employees entitled to be paid for their entire on call shift? The answer is usually no—usually.
As an initial matter, it is beyond dispute that an hourly employee must be paid for all time he or she actually works while on call. So, an employee who is on call for twelve hours and spends two hours responding to requests for service must be paid for two hours of work.
As to the remaining time, the test as to whether or not an employee must be compensated for on call time when he or she isn’t working requires an examination of the restrictions placed on the employee’s use of his own time and whether or not the employee can generally engage in his own pursuits while on call.
For example, a restriction that an employee not drink alcohol while on call is widely accepted as not so restrictive so as to require an employee to be paid for an entire on call shift. The requirement that an employee be available to respond to a call within fifteen minutes, carry a cell phone or a beeper to communicate with the employer, or call in every few hours have all been found to be reasonable restrictions. In theory, the on call employee can spend time with friends and family, go shopping, sleep, see a movie, cut the lawn, and so forth without any significant interference because of these restrictions.
One factor that may require an employee to be paid for all time spent on call is the number of calls to which he or she must respond during each shift. For example, an employee who is on call for twelve hours and is called out to work twelve or thirteen times on a regular basis, even if the time spent working during those calls is relatively small, would not be able to use the majority of the on call shift to pursue his own activities. Particularly in the case of an overnight shift, an employee would not be able to use the on call shift to obtain a reasonable amount of uninterrupted sleep. The frequent interruptions would likely mean that the employee must be paid for the entire shift. This would be true even during a single on call shift where an employee unexpectedly did not receive the usual number of calls, because the employee would anticipate receiving the normal number of calls and refrain from engaging in any of his or her own activities.
Another relevant factor is the amount of time that the employee spends actually working during an on call shift. An employee who works a twelve hour on call shift and receives only one or two calls but must frequently work six or seven hours to respond to those calls, may need to be paid for the entire twelve-hour shift if the employee is unable to otherwise use the on call time for his or her own pursuits.
Also remember that any hours actually worked while on call must be counted toward the total number of hours worked in a workweek for overtime purposes—employers should not classify on call hours separately and only pay them at a straight time rate.
Salaried employees are paid a salary for all hours worked in a week, so they are generally not entitled to any additional pay for on call work. Also note that union members may be subject to different rules if their collective bargaining agreement sets forth a different arrangement concerning on call time.
Most employees do not enjoy being on call or being called out to work outside of their regular shift, but fortunately most on call employees are not called into service too frequently; however, if your on call shift generally requires you to respond to many calls, or if you usually spend more than half of your on call shift actually performing work, you may be entitled to be paid for all hours in your on call shift.
Consultations to speak with a Scaringi Law Employment Law attorney can be made by calling 717 657 7770.