"Mandatory" call-in requirement... California

[Johnny_Law]

I'm a security officer in California. I work a 5 day / 40 hour Grave shift schedule. Last week, our supervisor told us that it is mandatory that we come in to work if we're called to help fill an opening. I contend that this mandatory requirement is illegal unless an "on call" schedule or roster is put into affect, all employees agree to it and persons on call are compensated for all hours they are on call. Any thoughts?

Thanks,

JL

[cbg]

Unless you have a legally binding and enforceable contract or CBA that specifically prohibits it, mandatory on-call or mandatory overtime is legal in all 50 states. There is no legal requirement that there be a roster or that all employees agree to it. Non-exempt employees must be compensated for all time actually worked, but that does not include time simply carrying a pager or cell phone unless the employee's personal time is unduly restricted by the state's definition. NO state considers simply being on call to be unduly restrictive. The employer, not the employee, determines what hours are worked.

On what legal basis do you believe this to be illegal?

[Johnny_Law]

Hi CBG,

Thanks for the quick reply! Regarding any legal basis for my contention, I don't have any, at least not yet. But in the security industry, it is standard that security officers are required to hold over until they are relieved. That's in post orders & in training material during orientation. Officers know that they can be disciplined & even fired if they fail to holdover when they have no relief. So for an employer to require that employees be on call AND be required hold over seems unduly restrictive to employees & beneficial for employers. Why must the employees bear the burden of an employer's poor staffing & scheduling practices? Also, this "mandatory" requirement was just made known & took effect immediately. I feel that there should have been a publication period for discussion & debate. Thanks again! JL

[Johnny_Law]

I would think that I am being unduly restricted if I'm being prevented from, or have to give up...sleeping, going to school, taking on a 2nd job, traveling, etc. Just a thought. JL

[cbg]

Most if not all states have specified that not being able to travel while on call is NOT unduly restrictive. Are you specifically prohibited from sleeping while on call? From taking classes?

It's the specific restrictions such as how long you have to reply to a call, that will make the difference.

You are free to contact the state and ask them if the specific restricitions on YOU require that you receive compensation.

[mcarson87]

It is almost certain that the state's labor commissioner's office will not answer your on-call questions with an unequivocal yes or no. They have made a point of not doing so in a number of opinion letters. At best they could provide you with guidance on determining whether or not the on-call time should be considered hours worked, but will likely not give you a definite answer unless of course you are being confined to the employer's premises or are subjected to some other obvious and previously addressed situation. But why tie up their phone lines and leave others with a busy signal when you could simply refer to a number of opinion letters, enforcement manual sections, and court cases? The only true way to get a clear yes or no would be to file a wage claim or initiate an action in court.

Courts and the DLSE (labor commissioner) have historically looked to several factors to determine whether or not on-call time is unduly restrictive and should be considered "hours worked."
1. Are you confined to a geographic area? (e.g. required to stay within 5 miles of your place of employment)
2. Are you required to respond to calls or summons to report to work within a certain amount of time?
3. How frequently are you actually called upon?
4. Can your on-call duties be traded with other employees?
5. What extent of personal activities are you able to engage in while on call?

See 47.4.2 et sequens of the DLSE enforcement manual for insight into what the DLSE looks to in determining compensability of on-call time. http://www.dir.ca.gov/dlse/Manual-Instructions.htm
Also opinion letters:
http://www.dir.ca.gov/dlse/opinions/1993-03-31.pdf
http://www.dir.ca.gov/dlse/opinions/1994-02-16.pdf
http://www.dir.ca.gov/dlse/opinions/1998-12-28.pdf

[Johnny_Law]

...seems that I probably don't have a case...will have to find another employer. In my particular care, there are no guidelines, just that it is mandatory for everyone to insure that the schedule if filled, no matter what it takes. If there's an opening & you're called to come in early or during your day off, you're expected to do it because the client demands it. I can appreciate the need to maintain adequate staffing, but then the employees should have been made aware that they would be on call when they hired on, not three months later.

Thanks again,

Johnny