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Thread: Call out requirement

  1. #1
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    Default Call out requirement

    I work for a utility company in Illinois. For 50 years, the company used a call out system to bring employees back to work after hours for outage calls, or storms, large or small. That system worked very well, when we had decent manpower numbers,and many reporting locations throughout the territory. But with downsizing the number of employees, and closing most of the outlying centers, less people, in fewer locations is making for longer outages. So,, instead of beefing up the roster, they are now "requiring" employees to be available, or "respond" to call outs without any compensation, or stand by pay. In other words, you are expected to come to work if called,to do that you must sit by the phone when you get home. They started with a 50% response requirement, and many employees were disciplined for not meeting that, and several are set to be terminated, for several months of low % numbers. And they demanded a 100% response for "big" storms ! We have a large area in Northern Illinois, it is common to have a big storm at one end, and sun shine at the other. So you never knew when to stay home. The required % has changed several times, so it is very confusing. Bottom line question, after working a normal day, and released, can they require "any" % of response to return to work, or must we sit at home "just-in-case-they-need-us-to-return" ? They will not consider pagers, or stand by or on call pay. Instead they punish us for not being available while not being paid. My question also is,,,, when am I off duty ? When can I go to a ball game, the store, or out for dinner" ?

  2. #2
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    Default

    Are you and the other employees a union?
    In Solidarity,

    Wayne

    www.waynemarshall.org

  3. #3
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    Default On-Call Pay

    Whether on-call pay is compensable is a difficult issue. It is somewhat subjective-highly dependent upon an employee's ability to exercise some flexibility in his/her time while on-call. If you can't leave your house, it does limit the flexibility. However, I know of one court case where the employee couldn't leave the employer premises. However, because he wasn't called very often and the employee could sleep, watch TV, etc., while he was on-call, it wasn't considered as compensable.

    According to the Office of Administrative Judges Desk Guide:

    "Time waiting while on-call


    In determining whether "on-call" time is compensable under the FLSA, the inquiry involves whether employees are required to remain on the employer's premises, or so close to the premises that the employees could not reasonably use the time effectively for their own purposes. See 29 C.F.R. 785.17; Skidmore v. Swift & Co., 323 U.S. 134 (1944). This inquiry includes a determination of whether the time while "on-call" was primarily for the benefit of the employer or whether the employee was "waiting to be engaged." Id. at 137.

    In Reimer, et al. v. Champion Healthcare Corp., ___ F.3d ___, Case Nos. 00-2413 and 00-2426 (8th Cir. July 16, 2001), the court cited to Armour & Co. v. Wantock, 323 U.S. 126 (1944) and Skidmore v. Swift & Co., 323 U.S. 134 (1944) to hold that "off-premises 'on-call' time" for nurses was not covered by the FLSA. The court agreed with the district judge that the on-call time was not spent primarily for the benefit of the employer and that "[s]hort of drinking alcohol or taking mind-altering drugs, the appellants could pursue a virtually unlimited range of activities in town or at home." The court further noted that the evidence established that "over a three-year span of time, only about a quarter of the appellants were actually called in more than once during their scheduled on-call times." See also Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (5th Cir. 1991).

    [a] Compensable

    In the following cases, the courts have held that "on-call" time was compensable: Armour & Co. v. Wantock, 323 U.S. 126 (1944) (private firefighters required to remain at the employer's premises to respond immediately to emergency fire calls); Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991) (city fire fighters required to be at station house within 20 minutes of receiving a page); Cross v. Arkansas Forestry Commission, 938 F.2d 912 (8th Cir. 1991) (forestry service employees had to remain within 50 miles of work site and had to monitor radio transmissions).

    [b] Not compensable The courts in the following cases found that the "on-call" time was not compensable because the employees were "waiting to be engaged" as opposed to "engaged to wait": Gilligan v. City of Emporia, 986 F.2d 410 (10th Cir. 1993) (city water and sewer employees; called to duty, on average, less than one time per day); Armitage v. City of Emporia, 982 F.2d 430, 432-33 (10th Cir. 1992) (city police detectives; called less than twice a week); Darrah v. Mo. Highway and Transp. Commission, 885 F. Supp.l 1307, 1313 (W.D. Mo. 1995) (state highway employee; called only once a week during winter season); Rousseau v. Teledyne Movible Offshore, Inc., 805 F.2d 1245 (5th Cir. 1986) (offshore derrick barge employees). See also Ormsby v. C.O.F. Training Services, Inc., ___ F.Supp.2d ___, 2002 WL 441520, Case No. 01-4029 (D. Kan. Mar. 19, 2002) (night manager at a transitional living house was not entitled to overtime for time spent sleeping four nights a week, even though he was not permitted to leave, because he was performing no routine duties). "

    You may wish to call the US Department of Labor to see their opinion on your situation. You can reach them by calling: 1-866-USA-WAGES
    Lillian Connell

    Forum Moderator
    www.laborlawtalk.com

  4. #4
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    Default

    We are in a union, this issue has gone to an arbritator for resolution.

    How can any company in this country tell you, you have to stay home after your shift, and sit by the phone in case they need you come back in to work, and, if you do sit home, and they do not call you, it is not like your are done with that for a while, you have to do it again the next night, and the next night, and so on forever ! This is not about being compensated for not doing any work, this is about being off duty, so you can spend time with family and friends, or live a normal life. When they have storms predicted, many times the company will "hold" people over, and schedule people to come in, in case the storm causes outages. These people are on the property, and paid accordingly. But as mentioned earlier, the company requires that employees be available for any kind of trouble at any time. The company once again is using one-way thinking, They can say, "we called you last night and you were not available". I can say "I was available the previous 6 nights, and you did not call me", meaning the employee gets no credit for being available for 6 days in a row, but will get a "ding" if one night in a week he happens to be away from home when a call comes in.


    How can a company dictate what you do, when not at work, on a daily basis ?
    Last edited by Short-Timer; 01-17-2005 at 12:31 PM.

  5. #5
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    Default !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Now,,,,,,,,,,, it just happened to me,,, I hung by the phone all weekend,,, Then on Monday night,, I went uptown,,, @6 pm,,,The company called @ 8 pm,, I was not home ,,, so I got a "ding" on my record... even though I was home at 10 pm,,,,,,,,, is this the land of the free or what ?

  6. #6
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    Default Two Issues

    There are two issues at work here...one is related to on-call pay and the second is related to following a supervisor's direction. As discussed earlier, the issue of on-call pay should be directed to the US Department of Labor.

    The issue of receiving discipline for not being at home is probably legitimate. Unless it is a matter of danger to yourself or others, you are required to follow the direction of your supervisor. To not do so, it is considered insubordination.

    I know that sounds harsh. However, focus on the issue of pay. You should also decide if there is a way to change your employer's thinking or you may need to think of changing jobs to a company that respects your free time.
    Lillian Connell

    Forum Moderator
    www.laborlawtalk.com

  7. #7
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    Default

    The issue of receiving discipline for not being at home is probably legitimate. Unless it is a matter of danger to yourself or others, you are required to follow the direction of your supervisor. To not do so, it is considered insubordination.

    So,the company, at the end of each regular 8 hour shift, every day, can "legally" require employees to stay at home and be available to return to work. The law does not require employers to recognize off duty time for employees. So why even have "On-Call" pay, if it is not a legal requirement ? Why not do like our company, impose a home confinement program 24/7 ?

    Thank you for the discussion,,,,, this is a very nasty situation where I work, there are people with 1000 paid hours of overtime, [ scheduled overtime, and extended days] that have a low call back %, who can not go to church, ball games, shopping, or leave the house, for fear of missing a call and given time off or dismissal.

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