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Thread: Illegal On Call Pay Colorado

  1. #1
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    Question Illegal On Call Pay Colorado

    I work for an IT company and I am required to be on call from Wednesday to the following Wednesday one week a month. During that on call week, I work Monday through Wednesday, 8 to 5 and Saturday and Sunday, 8 to 5. The exact on call hours are every evening (Wednesday to Wednesday) from 6PM to the following morning at 7AM. During this time I am required to answer all calls that come in and respond to emails and have a wireless connection on my computer to help customers. I am only paid for three hours of work, no exceptions. If I help customers for more than 3 hours it does not matter, I am still only paid for 3 hours for the entire duration of the on call period, Wednesday to the following Wednesday. Is this legal? What laws are being broken? I have read the entire employee policy/handbook front to back and it has no information regarding on call procedures, hours, or on call pay.

  2. #2
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    There are somewhat related things occuring.
    - Assuming that you are normally paid based on actual hours, then working at home is legally no different then working at "work". You must be paid for all hours worked. Where the work was done makes no difference. This is black letter law. There is no chance that this "3 hour" rule is correct.
    http://www.dol.gov/whd/regs/compliance/whdfs22.pdf
    - "On call" has a very specific meaning under law (actually under federal FLSA regulation 29 CFR 785.17). If your time is "sufficently restricted" as determined by prior DOL administrative decisions and prior court decisions, then all of the time you describe as being "on call" is legally "hours worked". The key is that my opinion, your opinion, and your employer's opinions in this matter are all meaningless. This is a 1940s era regulation with a ton of prior decisions. Every possible argument that can be made has been made already. And the judge/ALJ will listen to your facts and decide the decision the same way the last several thousands cases with similar facts was decided. Based on what you have said, I would say you have a good case. But of course the employer will likely present a very different set of "facts" and the judge will do whatever the judge does.
    http://ecfr.gpoaccess.gov/cgi/t/text....2.45.3.433.8- Your question implies that you are non-exempt. That hours worked legally matters. Based on what you described as your duties, I would be inclined to agree with that, that you would fail the IT Professional test for Exempt Salaried.
    Last edited by DAW; 02-28-2012 at 08:34 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

  3. #3
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    Default Thank you

    Thank you for your quick response and your reference links. Yes, I am paid hourly. I would also make a valid assumption that since I work at least a 40 hour work week, not including any on call time, the on call time is also over time. Is there a legal case(s) that could be referenced that I could further research to help solidify my claim?

  4. #4
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    Quote Originally Posted by MeganMM View Post
    Is there a legal case(s) that could be referenced that I could further research to help solidify my claim?
    Many thousands of cases. The cases cited in the regulation are a good starting point.

    ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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