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    Our employer has always asked us to take home an after hours cell phone. This phone is shared by 2 employees and if a call comes in we are required to help the person calling whether that means coming in to the worksite or simply answering over the phone. I have never had a problem with this but just recently our employer has decided that we cannot let any after hours call go to voicemail. We have to be available to answer immediately at all times. Is this legal without pay?

  • #2
    ndys, would you please start your own new thread - you added to a thread last posted on 2006. It gets confusing otherwise. Thank you.
    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

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.


    • #3
      It is now in its own thread.
      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.


      • #4
        Carrying a cell phone or a page by itself is not legally something that must be paid for. Being available to answer immediately at all times is more complicated. The related federal regulation (see below) is from the 1940s, obviously before cell phones and pagers were invented. Over the past sixty some years there have been likely millions of wage claims on this issue and tens of thousands of court decisions. This is not new "law". Unfortunately this is also not very clear law. The courts and federal DOL have not determined a "bright line" test. Instead all factors need to be looked to see just how much the requirement is interferring with the employee's ability to have a life. Most (but not all) of the cases and judgments have been decided in the employer's favor. The sort of cases that tend to win are those that require the employee to show up at work within 15 minutes of being called, or to stay physically at home next to their computer. Cases that merely require the employee to answer the cell phone or stay sober as far as I can tell never win.

        Worse, there are 50 different states, most of whom have their own DOL and all of whom have state courts. These sort of decisions are very inconsistent state to state.

        I can say that as soon as you actually start working (answer the phone) you are working and these hours generally need to paid. There is a minor "too small to count" exception, say a 30 second phone call and you are done, but there are limits to how much that particular exception can be used. Generally speaking, hours worked away from the office are every bit the same as hours worked at the office.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)