6 on-call mistakes that get companies sued
October 19, 2009 by Sam NarisiPosted in: Employment law, HR Tech, Special Report - Tech
Technology’s made it easier for employees to be on call while still going about their personal lives. But companies should review their on-call policies to make sure they aren’t in danger of a hefty wage-and-hour suit.
Wage disputes are more common in this economy, and complaints regarding on-call time are no different. Companies have been hit hard for on-call time that should have been paid.
The general question when deciding if the time needs to be paid: If they aren’t called to work, can employees use the time as they wish?
If the answer’s yes, they aren’t considered “on duty” and only need to be paid for time spent working.
Here are some things the courts look at when deciding if employees on-call need to be paid:
- Strict geographic limitations – There’s no one answer regarding how close you can ask employees to stay to the worksite while on call, but requiring them to be within, say, a five-minute drive could probably get the company in trouble.
- Restrictions on movement – When employees are required to stay in the same place — whether it’s a work site or their homes — a court may agree their time needs to be paid.
- Quick-response requirements – Judges also consider the time a company asks its employees to respond to a call. Again, there’s no one rule, but courts have ruled that requiring employees to call back within 30 minutes is not overly restrictive. Anything much less than that probably would be.
- Uniform requirements – If employees have to wear a uniform, that’s a sign that personal use of their on-call time is restricted.
- Frequency of calls – The more calls employees get, the more likely it is that they’re considered “on duty” and need to be paid. For example, the Department of Labor has stated that EMTs who get more calls in the winter may be owed wages for their on-call time during those months, but not the rest of the year.
- Prohibiting employees from switching shifts – The more freedom employees have, the better the chance a court will side with the company.
Tags: department of labor, on-call, wage and hour
October 20th, 2009 at 12:27 pm
ITEM #5, YOU HAVE USED THE WRONG VARIATION OF THERE, THEIR AND THEY’RE. THE MORE CALLS EMPLOYEES GET, THE MORE LIKELY IT IS THAT “THEY’RE” CONSIDERED……… NOT “THEIR”, AS YOU HAVE USED.
October 20th, 2009 at 1:46 pm
“TIME SPENT WORKING” NOT “TIME SPEND WORKING”
October 20th, 2009 at 1:55 pm
Check the fourth paragraph. The word should be ’spent’ working, not “spend” working.
October 20th, 2009 at 2:05 pm
grammatical issues or not, thanks for the information.
October 20th, 2009 at 2:08 pm
First, it’s refreshing to see people catch spelling/grammar errors!
We handle on-call by paying a flat rate to the on-call employee (scheduled on a rotating weekly basis). Since they know ahead of time when they are scheduled, if they have a conflict, it is their responsibility to find a replacement. If they are called out, they are paid for the time. If they are not called out, they have still been paid the fee for their “trouble”. The only requirement we have is that they need to at least call the customer within an hour, and decide during the call if the problem is severe enough to warrant a trip, or if the customer can wait until normal business hours. I am just throwing that out there for anyone who might want suggestions.
October 20th, 2009 at 2:10 pm
This is not an English class – ease up on the critiques please and stick with the topic please. Thank you.
October 20th, 2009 at 2:10 pm
What does listing grammatical errors have to do with the article? I’m sick of reading blogs that have nothing to do with the article. The articles are supposed to be informative – not picked apart for grammatical errors. Pardon my errors!
October 20th, 2009 at 2:39 pm
If a person is paid by the hour during normal shifts, is that same person paid the same amount when called out for on-call work? Or, can the agency provide a lower hourly amount?
October 20th, 2009 at 2:49 pm
The grammatical errors in a professional publication immediately invalidate the whole thing. If you cannot write accurately, it casts doubt on the accuracy of the content. I stop reading as soon as I realize the writing is sub-par and it has not been appropriately proofed.
October 20th, 2009 at 3:02 pm
Stop with the grammar critique. If the only reason you read is to find errors and point fingers you have no business on the website! If you can’t understand the content, don’t pick apart the words!
October 20th, 2009 at 3:54 pm
So…anyone other that RFR and Allen have anything to say about on-call employees and how you handle their time worked to avoid getting into trouble?
Does anyone have an answer to Allen’s question? I had never thought of this before but am quite curious now
October 20th, 2009 at 4:07 pm
In past experience, employees “On-Call” were not paid for being “On-Call”, however, they were paid a premium hourly rate for being called out, not a lower hourly rate.
October 21st, 2009 at 8:50 am
What should be established are pay practices to cover instances such as this, as our organization has in place. Ex. – If an employee (nonexempt / hourly)is called into work, they are guaranteed a minimum of 2 hours of pay, even if the visit to work is for only 15 mins. The rate they are paid is consistent with the requirement that employees be paid OT for all hours worked in excess of 40 hours in a workweek (not 8 hours in a day), so if their wortk week, including the call in time is in excess of 40 hours, they are paid time and a half. If the hours are less than 40, even with the call in time, they are paid at their normal straight time rate. Hopefully this will answer Allen’s question. At least that is how it is in the state of PA in a non-union work environment.
October 21st, 2009 at 9:47 am
What if you have a Chapter Monthly Meeting you and your employees are invited to in the evening,
you put the sign in sheet in the break room and call it volunteer and the company will pay for your dinner. We don’t pay these employes for time correct?
October 21st, 2009 at 10:13 am
We handle this by paying overtime rate for the time calls are handled. Our on call person logs the length of time they handle calls and are paid overtime for it. We also allow them to set the the rotation which is usually alternating days and weekends. They have freedom of movement because we use a laptop with air card and cell phones. As far as response time the on call folks feel an obligation to our clients to respond quickly so we have no need for time requirments. Works out well for all.
October 21st, 2009 at 10:22 am
We pay a stipend of $1 per hour for on-call time, plus $50 if they cannot address the issues by phone and are actually called out. Since the employees are salaried and therefore exempt from overtime, they flex their hours within that week for the time they actually work during their on-call schedule.
October 21st, 2009 at 11:17 am
John: I think what you are saying is that YES, a person paid hourly must be paid the same hourly rate for on call work as they are for regular time work and if it pushes them over the 40 hour threshold, then they get time and a half. Work is Work and just because it is “on call” doesn’t give the employer the ability to lower the hourly rate. However, persons who are exempt and on salary can be called in “on call” and paid nothing or a stipend amount. Somehow this does not seem fair but it is the law. Anyone disagree?
October 21st, 2009 at 11:29 am
Allen & Others: That exempt person can also leave the workplace at 3pm rather than at the normal 5pm, or come in at 10am, rather than 8:30am and still receive their full salary. Exempt personnel are not paid for the time they spend doing a job, but rather paid for getting the work done, no mater how long (or in some cases), or how little time may be spent at work. Yes Allen, you have stated it correctly. Go to the Dept. of Labor web site and search for FLSA (Fair Labor Standards Act) and it will guide you as to what payment practices you need to employ to be in compliance with the law.
Also, has anyone had a problem at their workplace when employees clock in well before their actual starting time and the consequences that it may cause if audited by either state or federal Dept. of Labor agencies? I’d like to hear of the consequesnces of allowing this to happen, as it is a definite no-no.
October 21st, 2009 at 1:08 pm
John: Our company has included a section in our Employee Handbook regarding “clocking in” early or clocking out late. It stipulates “normal” employee work hours and that employees must not clock in earlier than 15 minutes prior to or later than their appointed work hours. In addition, the condition is set forth within the handbook that any and all hours spent working outside an employee’s appointed work hours must be authorized by a duly authorized supervisor and the time stamp on their time card initialed by the supervisor.
Should you be in one of those states where this is not concisely covered without ambiguity within labor regulations, (our) state has taken the stand in the past that a signed acknowledgement of adhering to company policy as set forth in the Employee Handbook is a condition of employment. Employees are expected to adhere to those conditions of employment or could be considered to be acting insubordinately.
On another note, while this may not be a grammatical critique forum, I do agree that in this day of technology, blatant spelling errors and other misspellings which cause context-altering errors bring me to consider the validity of any information I happen to be reading. Yes, we can be passionately tapping out our responses as readers, but the reputation of the article producer, author and integrity of the information presented are significantly compromised by blatant and frequent errors.
October 21st, 2009 at 2:18 pm
I feel as if the states leave this vague on purpose to avoid actually having to define anything. There are some tough questions about the on-call status that were not addressed. If an employee is on call and responds to a call that ends up being cancelled upon their arrival on site, should they be paid and if so – from when to when?
For an employee not on call that shift but who is called out by special request, is the compensatory time from the call to the end of the work? If the job takes less than four hours, should the company pay the four hour minimum to the employee called out when not on-call status? Some states may consider this time and a half.
I’m wondering if signed contracts may be beneficial to companies with this issue to avoid the confusion. It would make more sense for a company to have it all lined out and agreed upon at the time of employment.
As for the grammar and spelling issues, please remember that no matter what your opinion may be, it is still considered improper to use all caps when posting online as it indicates shouting; that is purposely unprofessional whereas a typo is careless yet accidental.
October 22nd, 2009 at 9:38 am
Correct grammar and spelling are important, not just because they convey professionalism, but also for precision and accuracy of the communication. This is especially important for presenting technical or legal issues as in this article.
For instance, I believe the author intended to say “ employees’ ” in the following sentence:
“Here are some things the courts look at when deciding if employees on-call need to be paid:”
For me, I find HR Morning.com useful and interesting, but I would never rely on it as my authoritative resource for issues such as this.
October 22nd, 2009 at 10:15 am
I posted the following article in our local SCORE newsletter. You may find it helpful.
HR Tips: What Happens When New Technology Meets Old School Regulations?
With modern technology (e-mail, cell phones, laptops) we have changed the way we do business. We can get more work done, anytime, anywhere. However, when Managers encourage or require nonexempt (hourly) employees to work off the clock, it can be a violation of the Fair Labor Standards Act (FLSA).
Requiring your employees to answer calls or check emails “off the clock” can lead to wage and hour violations and costly court battles for unpaid wages. The law does say “de minimis” work (defined as work taking only a “a few seconds or minutes”) can be unpaid, however the definition of “de minimis” is murky and typically is considered time earned even if it is as little as ten minutes.
What can you do? Don’t give cell phones to non-exempts and don’t require email correspondence during their non-working hours unless you have a clear and consistent policy and procedure in place to make sure they are paid for their time.
Submit a Human Resource question to http://www.ExtensiveHR.com/HR-Tip. We will select the most popular topic to answer in next month’s SCORE Newsletter.
October 22nd, 2009 at 12:50 pm
I’m not sure if this would help anyone to date with the various questions listed here but I thought I’d convey how we handle “on-call”. My business is a service business specializing in HVAC and Plumbing. We pay our techs a flat fee for clearing their schedules in order to be available for after hour needs, including the weekend. They’re on call for an entire week. When we have to send them out on a call they receive time and a half for this call. In most states this “time” begins when they begin traveling to the call and ends when they return…sometimes referred to as “Port to Port”.