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Hourly employee made to be on-call for a few days in North Carolina

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  • Hourly employee made to be on-call for a few days in North Carolina

    I work with a company and during certain times of the year, the site supervisor will state to the employees that they are on-call and must return calls with-in 10 mins time. We are not issued company cell phones and most of us do not have personal cell phones. This would mean that we would have to sit by the phone at home, the entire time. We are also told that if we do not return the messages left for us with-in 10 mins that we would be "written up". There are "on-call" guards that get paid extra for being on-call 24/7 but we as regular hourly employees are not. We were told that they were not going to use the "on-call" guards because they were to expensive for this site. (The hourly guards at this site make $8.50 and hour and the "on-call" guards normally make $15.00 an hour depending on were the site is that they are sent to.)There is nothing in our employee handbooks that state that the regular hourly guards have to be on-call or return a phone call with-in 10 mins on our days off. Are they correct in doing this or should we be paid for being "on-call"?
    Last edited by steelhart75; 09-13-2011, 02:31 PM. Reason: additional information was added.

  • #2
    Handbooks are almost never legally binding contracts. You can pay a lawyer to read your handbook, but it is very likely that your handbook is legally nothing one way or the other.

    What you are left with is the FLSA law (1930s) and the on call regulation itself (1940s), 29 CFR 785.17. Please note that there were no cell phones when these rules were written. There were no cell phones when all the major court cases, including a few US Supreme Court decisions occured. This is a very pro-employer rule. If the employer ordered you to physically stay at home, you would have something. If the employer ordered you to not get a cell phone or a pager, you might have something. The problem is that your argument basically is that because you choose to be one of the very few people in the country to not have a cell phone or pager, that your choice should by itself force the employer to pay you extra money. Worse, the employer can legally order you to get a cell phone or pager and NOT reimburse you in your state as long as you are not paid exactly the federal minimum wage.

    You are basically taking about very well established law that does not agree with you. Now you can argue that this is bad law and there would be those that agree with you but if so it is well established bad law.

    If you think you are correctly, file a wage claim and cite 29 CFR 785.17, claim that your time was "sufficently restricted" to be considered hours worked under FLSA. And hope your employer's lawyer knows nothing what-so-ever about labor law and is too lazy to look up the prior decisions in this area, none of which go your way.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      I understand what you are saying...putting aside the fact that i do not care to have the extra bill for a cell phone.

      What you are saying is that at any time I can be call-in, even though there are specific employees who get paid to do this, and if called i have to call back with-in 10 mins and I must report into work even though it is my scheduled day off and even if I had a cell phone and she she called me I must report to work no matter what I am doing and she can do this when ever and as often as she chooses?

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      • #4
        Pretty much. As long as we are talking federal law (FLSA), the feds are fine with you working 24/7/365. Not physically possible but not explicitly illegal. Not explicitly illegal to randomly call you at all hours of the day and night to tell you to report to work. There is no federal right to time off (ever).

        On call is something very different then this. On call means that the employer has so restricted your use of your own time that functionally you never left work. An example is that 10 minutes after the phone rings you must be AT WORK. Meaning you have to stay physically very close to work. Way back in the 1940s, that was exactly the sort of case that the on call regulations were written to handle. Think say fire fighters waiting for the red bell to ring. They are not working (maybe) but they cannot leave the fire station. THAT is what the original intent of the on call regulation was. Not "the employer should pay me for the inconvenience of being on call". The regulations have not changed. There have been a lot of court cases, but that is still the intent of the on call regulation.

        Regarding you not wanting to pay out of pocket for a cell phone, fair enough. The problem is that there is long standing Common Law support for employers requiring employees to spend their own money on work clothes and automobiles, to name a few items. Employees have already tried the "I do not want to pay for a cell phone out of my own pocket" argument, and the courts have already basically said "too bad, you are s***ed". Or words to that effect. The only real exception is the "free and clear" exception under the federal FLSA law for employees paid at or near minimum wage. It is a real exception, but a very narrowly worded one.

        If you want to keep your job, this is maybe not the best fight to have with your employer.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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