I am currently employed in NJ, paid as a “non-exempt”, time card employee. We are paid based upon a work week of 37.5 hours, with straight pay up to 40 hours. Over time kicks in after 40 hours at a rate of time and ½. Without getting too specific, the industry I work in advertises 24 hour customer service, which we currently have available via an 800 number line. At times, a face to face meeting is necessary with customers after hours, based upon an emergency basis. My company is considering having my department be “on call” 24/7 for these emergency situations. We would be required to carry a cell phone at all times and be available at a moments notice to meet customers day or night, including weekends. We would only get paid if the phone rings and for the time thereafter handling the customers concerns. My problem is that we will not be compensated for the time we are “on call”, which essentially limits what I can do in what was otherwise my “time off”. Is anyone aware of a labor law that would require my employer to pay us for being on call and available, even if the phone does not ring?

Probably not. The federal rules related to on-call are shown below. I have no idea what rules (if any) your state has on this subject.
- Employees who must be on-call on the employer's premises or close enough to seriously curtail their use of the time for their own purposes must be paid for the time spent on-call. But employees who merely have to leave word where they can be reached are not working while on call. (29 CFR 785.17).
- Employees must be paid for unproductive time if that time is spent for the employer's benefit (29 CFR 785.7).
- If an employee has been called back to work, you must also pay for his travel time because his time is no longer under his own control once he receives the call back to work. If he works from home, only the time actually spent working has to be paid for. (29 CFR 785.33-785.41).
- The regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment . . . in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid. On call pay causes the regular rate of pay to change. (29 CFR 778.109)

DAW - Thanks for your reply. From the links you provided, it sounds like I would be eligible to be paid for "on call" hours. Am I reading this correctly? Thanks.

I doubt it, which is why I said "probably not" to your first question. How is carrying a cell phone "seriously curtailing" your activities? Successful examples of on call pay generally involve something like "must report physically to the office with 10 minutes of receiving the phone call" or something like that. Everything thing I have read indicates that merely carrying a cell phone or a pager is not consider on call pay by federal DOL. There are court decisions such as Reiner v. Champion Healthcare and Wisnewski v. Champion Healthcare that support this viewpoint. The two employees made exactly the same argument you just made and the court found against them.

Court decisions supporting on-call pay include Pabst v. Oklahoma Gas & Electric where the employees were on call 24 hours and had to report to the work location within 10-15 minutes of the call, it took approximately 45 mintues of work time to resolve each problem, and received several calls every 24 hour period.

And I still have no idea what rules (if any) your state has on this subject. The above is federal rules only.

Thanks for the reply. I guess the definition of "seriously curtailing" may mean different things to different people. To me, getting a phone call at 3 a.m. would fall into that definition as chances are, I would not be able to get back to sleep after speaking on the phone with a customer for 15-20 minutes. I would not be able to venture too far from my home, because if a call came in, I'd have to drop my current activity and leave to provide service to a customer. If a call came in, I'd have to find someone to take care of my children and possibly have to pay this person. I would not be able to go to the movies or church, as these establishments do not allow phones to be on while on premise. I would not be able to have a glass of wine with dinner because I may have to drive to a customers house in a company vehicle and this is strictly prohibited. I would always be on edge no matter where I went for fear the phone would ring and I would simply not be able to enjoy myself knowing that at any given moment, I may have to leave. While these may not sound like "seriously curtailing" reasons, my family life is very important to me and while I am a very dedicated employee, I did not sign up for 24/7 and for the company to make such a drastic change in employment requirements is just crazy.

I really do appreciate the input you gave can the case law you cited. I will definatelty check into the state laws as well. My company has been sued in the past for issues such as these in other states and have lost. Thank you again for your replies.:)

I understand what you are saying, but I have also read many articles that use the exact same thing that you are saying that also say that federal DOL has already ruled against that logic. The problem is none of these regulations are very new and all of these issues you bring up were decided a long time ago.

You might also check the federal DOL website for opinion letters. That will give you a idea what their thinking is if you can find an opinion letter on this subject. I have never heard DOL say what the "bright line" test (if any) was. I take some newsletters that discuss this sort of thing occasionally and all of the on-call discussions indicate that "seriously curtailed" tends to be taken by DOL as meaning very, very seriously curtailed. Even if you find a court case that seems to say what you want it to say, it at best is applicable only in the juristiction it occured in. While federal DOL cannot override a court decision in it's own juristiction, federal DOL can set the rules everywhere else (at least until a court with proper juristiction says otherwise).

To further complicate things, you would probably file any claims with your state, who could have more favorable rules to the employee then federal DOL. The only state I am really familar with is CA and their rules are generally similar to federal DOL on this issue.

Let me know if you come up with something useful (aka verifiable).