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Being on call/standby California

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  • Being on call/standby California

    I am a surgical nurse in California that must take call/stand by every week and some weekends. i get paid for that, while at home waiting to be called in.

    Our housekeeper at work was just told she must take call every other weekend to serve our department, should we have surgeries. She must be available for the entire 48hours of each weekend and is not getting any pay for that. She does get paid for two full hours if she gets called in to clean up after our surgeries.

    My question is if it is legal to require a person to be "on call" at home, without compensation? As a nurse, I certainly do. She is being asked to carry a pager for an entire weekend to be at our disposal to clean our OR rooms after any surgery. Is there a law that states she must be paid while on call?

    Thanks for any info.

  • #2
    There is no law in any state that requires an employee to be paid simply for being on call. Carrying a pager is not enough to make the time compensable.

    What turns on-call time into compensable time is how restricted her time is. If she can go about her personal business with a pager in her pocket and has a reasonable time to respond to a call, that time does not have to be paid. If she is tied to the house, cannot leave the phone and must respond to a call within a few minutes, then she most likely would have to be paid.

    The same applies to you, btw. If you get paid simply for being on call, that is very generous but is more than is required by law.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


    • #3
      Standby pay

      Hey Cbg,

      Thanks for such a quick reply. I would hope that you might be an attorney that knows labor laws to the max. Here is a link to the Dept. of Industrial Relations that adds to my confusion since I have researched and still have questions:

      Included in this is a statement:"Examples of compensable work time include, but are not limited to, meal periods and sleep perids during which times the employees are subject to the employer's control."

      I will also include some other research that leads me to believe that standby pay does demand payment for some:

      Many California employees perform standby or on-call work, where they are required to carry a cell phone or pager or to check their email on a regular basis, while they are otherwise going about the affairs of their personal life. Some employers call in their employees on the spot, while others accept a longer response time. Can an employer require an employee to be on-call after they leave the office? And if so, is the employer required by law to pay for on-call time?
      If you are an exempt employee (i.e. administrative, executive, professional or outside sales position), you are not entitled to extra pay for on-call time. You may, however, negotiate for some type of compensation for standby time. Non-exempt employees, on the other hand, must be paid for standby time when the time is “controlled” rather than “uncontrolled.” Whether the standby time is controlled depends on the unique facts of each situation.

      Controlled Time
      Controlled standby generally means that an employee is required to remain on call on the employer’s premises, or so close to it that the employee cannot use the time effectively for their own purpose. So, for example, suppose you have finished work for the day and your boss tells you that she needs you to be on call for another 2 hours, but she needs you to be no further away than the coffee shop on the first floor of your building. Any controlled standby time must be added to regular time worked to determine if overtime compensation is due. Controlled standby time may be compensated at a different rate than is paid for other work by the same employee, so long as the employee is paid at least minimum wage.
      Uncontrolled Time
      Uncontrolled standby generally means that an employee is not required to remain on the employer’s premises, and is
      merely required to carry a cell phone or pager. Uncontrolled standby time may be spent predominantly for the employee’s own purposes. An employer may require that an employee on uncontrolled standby limit himself or herself to being no further away from the employer’s business than a twenty-minute response time. In one particular court case, three minutes was ruled to be too restrictive and was found to be controlled time.
      Is it Controlled or Uncontrolled?
      The California Department of Labor Standards (DLSE) considers the following standards to determine if on call time is compensable: (1) geographical restrictions on the employees' movements; (2) required response time; (3) the nature of the employment; and (4) the extent the employer's policy impacts personal activities during on call time.
      The federal Ninth Circuit in California basically looks to two factors in determining if the time is controlled or uncontrolled: (1) the degree to which employees are free to engage in personal activities and (2) the agreement between the employer and employee. The U.S. Supreme Court looks at whether the time is spent predominantly for the employer’s or the employee’s benefit. Here are further examples of court decisions ruling that standby time was uncontrolled:

      -- A hospital biomedical repair technician was not entitled to compensation even though he was the only on-call tech, was required to respond to all calls, responded to an average of 4 to 5 calls per week, was on-call by beeper, had to respond within 20 minutes, and could not be intoxicated if called.
      -- Detectives were not entitled to pay for time spent on-call during meal breaks, even though they were required to remain sober and respond via beeper within 20 minutes.
      -- An ambulance dispatcher was not entitled to pay while on-call because she was allowed to visit friends, entertain guests, sleep, watch television, do laundry and babysit.

      Even these court decisions appear to conflict with labor laws. Any further advice/suggestions for my friend? And, btw, she did not make any agreement for call, but was just told she had to take it.



      • #4
        This is from the US DOL website. It more or less says the same thing cbg stated.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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        • #5
          I have handled many stand by time cases, and there are some governing cases that you should be aware of that may shed light on your situation.

          "Experienced Overtime Class Action Attorneys"

          This communication does not constitute legal advice, nor establish an attorney client relationship of any kind. You should contact an attorney prior to acting on or not acting upon any information contained herein.


          • #6
            Short of a CBA or individual bona fide employment contract saying the employee had to "agree" to a change in working conditions, she agreed when she continued to work.

            leads me to believe that standby pay does demand payment for some:
            Nobody said it was never compensable.

            For some, yes, but not for all and your cites support that. If your friend wants to contact an attorney, she's certainly free to do so.
            Last edited by Pattymd; 11-16-2008, 03:52 AM.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


            • #7
              humbmom: My question is if it is legal to require a person to be "on call" at home, without compensation?

              I'll echo what cbg stated above: "What turns on-call time into compensable time is how restricted her time is."

              As a general rule, if an employee is required to carry a pager and given a reasonable amount of time to report to work (e.g., 1 hour), then the employee is not going to be entitled to compensation when on call.
              Barry S. Phillips, CPA

              IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.


              • #8

                Thank you all so much for your quick replies. For a first-time visitor, I am very impressed and pleased at your reception.

                With the information given to me at this site, I feel very fortunate to be compensated for call time.

                Again, many thanks.