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hourly workers and cell phones / pagers Maryland

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  • hourly workers and cell phones / pagers Maryland

    I'm an Hourly worker in the state of Md.

    My employer is requiring that I carry a pager / cell phone (they pay for it) and be available via the pager / cell phone 24 hrs a day at thier beck and call.

    My question is, while I carry the pager / cell phone is this considered work time?

    I'd appreciate any definitive information supporting any legal position.

    TIA
    Last edited by cbg; 01-25-2008, 08:58 PM.

  • #2
    Simply carrying a pager/cell phone is not considered work time.

    Some or all of the time *might* be compensable depending on how restricted your personal activites are.

    If you are called in to work, assuming that you are non-exempt, you have to be paid for that time.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      You do not have ot be paid simply for carrying the pager or cell. http://www.dllr.state.md.us/labor/wa...whatiswork.htm
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

      Comment


      • #4
        ElleMD & CBG,

        Thanks.

        Of course you recognize I wouldn't carry a Cell Phone or pager for my employer if they didn't direct me to do so right?? So this becomes an "Assigned task"...

        So does this change your position as if this is work or not?

        I certainly don't volunteer for this... nor does anyone else... yet we are all provided these Cell phones & Pagers, and should it go off, and I'm not available or don't respond in a reasonable amount of time (say 10-30 minutes) then I'm in trouble. So both of you think that being required to carry a Cell phone / pager is not compensable?

        In the past I've had my personal time interrupted and intruded on time and time again...
        Last edited by SamK; 01-26-2008, 05:07 AM.

        Comment


        • #5
          The rules for whether someone should be paid for being on call relate to how restricted a person's activities are while they are on call. If you can't leave your house because you're waiting for a call, that's pretty restrictive and you must be paid. If you have to carry a pager/cell and can call back within 30 minutes from wherever you are, that's not considered to be restrictive and you don't have to be paid. The Fair Labor Standards Act makes a different between "engaged to wait" and "waiting to be engaged," and you might want to google those terms to learn more.
          I am not able to respond to private messages. Thanks!

          Comment


          • #6
            Originally posted by SamK View Post
            So both of you think that being required to carry a Cell phone / pager is not compensable?
            It is more like the government that does not think that being required to carry a cell phone or pager by itself is compensable. There is case law on this stuff going back to the 1940s (well before cell phones and pagers). You are not the first person making this argument, and the government considers the basic law to be quite settled. The only real question is the application of the settled principals. The following is one of the related federal DOL regulations.

            http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.17.htm

            29 CFR 785.17 - On-call time.
            An employee who is required to remain on call 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''. 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. (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)

            Comment


            • #7
              I'm very appreciative of everyones observations here as well as the case law.

              I suspect the hindrance for me is the aspect that I must be available... literally at the drop of a hat, and this becomes a "Condition of Employment."

              I might be able to do the work from a remote location, providing I can get an internet connection and I take my lap top with me...

              But should I choose to not take my laptop with me for whatever reason, then I must return to my house and either establish a connection or retrieve my laptop and go into work.

              Either way, my employer has now literally engaged me in a "Wait for the possibility of work" condition and should I fail to respond, then I'm terminated.

              So if I go to a movie, and the phone rings, I'm disrupted. If I go on an out on a boat fishing for a "weekend" or after hours and can't get back within sufficient time, then I'm penalized.

              So I guess I don't understand why this isn't compensable.

              TIA

              Comment


              • #8
                Originally posted by SamK View Post
                So I guess I don't understand why this isn't compensable.

                TIA
                Because the government (mostly) says that it is not. We stop at red lights because the government says so. We pay taxes because the government says so. If you want a better reason, talk to the government. I am not sure what anyone on this website can say that will change any of these situations. I am also not sure why you would think that any of us could.

                Just to be clear, any time spent actually working (by a Non-Exempt employee) is paid time. There is some very poorly defined line that if your time is "sufficently restrictive", it becomes paid time. The traditional example is someone who must physically report to work within a short period of time of being called. The government is clear that merely carrying a cell phone or pager is not time worked. There is some legal point where if one increases the restrictions the "time worked" line is crossed, but there is no "bright line" test for when this occurs. The recourse is basically for the employee to file a wage claim, and the government gets to decide which side of the line the facts indicate. Historically, the government tends to call this very tightly. The government tends to call many labor law situations very tightly because when they do not, Congress tends to pass laws taking away regulatory or court discretion (such as the Portal-to-Portal Act).

                I am guessing that employees who carry cell phones and pagers do not spend millions of dollars each year on campaign contributions and lobbying. I am guessing the businesses who have such employees however collectively do spend millions of dollars each year on campaign contributions and lobbying. Whose interest do you think the government is looking out for?
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  If all that is required is that you answer the phone and find an internet connection with a laptop, no, that time isn't going to be compensible, except while actually working. It just goes with the job.
                  I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                  Comment


                  • #10
                    And no, I don't think that simply carrying a cell phone or pager is work time, since you ask. Now, if you get called to work, that's a different story.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment

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