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Hourly worker, on-call without pay Ohio

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  • Hourly worker, on-call without pay Ohio

    I have a question about being on-call. I work for a nursing home and share an on-call rotation with 4 other nurses. We are required to be on-call for an entire weekend, after working our 40 hours, or more (we are hourly employees-the 2 salaried management nurses are not required to take call). We use our personal phones as the contact numbers, using cell minutes if needed. We must stay sober, rested and ready to go to work at any time that a nurse either calls in for a shift or has to leave the facility for an emergency. We are also responsible to replace nursing assistants or nurses, if able, for open shifts during our “on-call” time, if needed. Needless to say, we must stay in town. We are not reimbursed for anything at this time, other than the time we actually work; meaning, the time we punch the time clock, in and out. It seems as though we should receive some other compensation. Please advise!

  • #2
    Whether hours spent on call are compensable hours of work is a question of fact to be decided in the context of a given case, based upon a variety of criteria. As explained in 29 C.F.R. § 785.17, "an employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’" Furthermore, "an employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call." Id. Where an employee who is on call is free to come and go as he or she pleases and is also able to engage in personal activities during periods of idleness while subject to call, such time need not be compensated. See 29 C.F.R. § 553.221(d). These principles also apply where an employee is required to carry a paging device and to report to work or otherwise to respond (e.g., telephone in) within a specified period of time. If the calls are so frequent or the on-call time conditions so restrictive that the employee cannot effectively use the on-call time for his or her own purposes, the on-call waiting time would constitute hours worked. See Wage and Hour Opinion Letters May 28, 1998, August 12, 1997, and April 20, 1994.

    As the Supreme Court has explained, where the facts demonstrate that an employee has been hired to spend time waiting to respond to the employer’s needs, the employee is traditionally described as having been "engaged to wait," and such time constitutes compensable hours of work. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944). On the other hand, where the restrictions on the employees’ activities do not prevent them from pursuing their normal pursuits, such employees are described as "waiting to be engaged," and such time is not compensable. Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).

    The federal courts evaluate a variety of factors when determining whether an employee can use on-call time effectively for personal purposes, such as whether there are excessive geographical restrictions on an employee’s movements, whether the frequency of calls is unduly restrictive, whether a fixed time limit for response is unduly restrictive, whether the employee could easily trade on-call responsibilities, whether use of a pager could ease restrictions, and whether the on-call policy was based on an agreement between the parties. See Reimer v. Champion Healthcare Corp., 258 F.3d 720, 724-25 (8th Cir. 2001); Pabst v. Okla. Gas & Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000); Ingram v. County of Bucks, 144 F.3d 265, 268 (3d Cir. 1998); Owens v. Local No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 351 (9th Cir. 1992); Renfro v. City of Emporia, 948 F.2d 1529, 1537 (10th Cir. 1991); Cross v. Ark. Forestry Comm’n, 938 F.2d 912, 916 (8th Cir. 1991); Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 678 (5th Cir. 1991). This list is illustrative, not exhaustive, and no one factor is dispositive.

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