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  • forced standby/oncall? California

    The topic of being on standby/oncall has come up at work and they believe they can force any employee to be on standby status without the employee's consent.

    so the question is, IS it legal for the employer to force anyone to be on standby status without their permission or agreement?

    i was hired to work from 8am to 5pm with an unpaid 1 hour lunch. period. outside of those hours, as far as i'm concerned, my time is nobody's business but my own.

    i have read a vast sea of information about laws regarding how/if pay occurs for oncall/standby, but nothing about whether they can force it in the first place.

    here are my concerns about such a thing:

    There are requirements which include not being permitted to engage in any activity which would hinder the ability to respond to a call, and not being permitted to travel outside a reasonable distance for being able to respond, as well as not consuming alcoholic beverages.

    This means that if i were to be on standby status, i could not engage in most of the activities that i commonly do in my personal endeavors, since they would render me unreachable and cause me to breach the standby requirements. or i would have to have the right to say "i'm doing this or that, so i can't be the one on standby tonight" and then engage in my personal life while it is the employer's own responsibility to find someone to provide them the standby service they're looking for that night.

    if, in fact, an employer did have the right to force an employee such as me to be on standby status, notwithstanding whether the employee gets paid for it or not, the employer could choose to exercise such right every single day and the employee would effectively have no personal life whatsoever, outside of sometimes being able to sneak in an insignificant personal endeavor here or there when it seems things are a bit quiet on the employer's front.

    to me this seems unconscionable.

    it seems to me that if an employer felt it was necessary to obtain/utilize standby services, then it should seek to obtain those services from those who are able and willing to provide it. for example, to request it of employees, and if if felt that the response was insufficient for it's perceived needs, the employer would certainly have the choice to hire sufficient staffing to cover such needs. the issue is even worsened by the fact that the employer is insufficiently staffed and has chosen not to hire sufficient staffing for it's perceived needs. why should any individual employee be forced to suffer due to the employer's own incompetence?

    given that there are provisions for standby pay it is highly probable that an employer would find consensual workers to take advantage of such an opportunity, but if any given employee is not able to perform standby duties, that is not the employees fault when there was never any disclosure, knowledge or expectation to do so. The employer would have had the choice whether or not to hire an employee who was unable to perform such duties and the choice was made to hire.

    there was never any prior disclosure that standby was even a possibility of employment, and since it is unionized, i have read the union MOU which is weak and ambiguous, and have found absolutely no provisions regarding putting people on standby in the first place, only a few clauses that cover some cases of how employees get paid if they do in fact perform standby status or work on standby.

    that means that we fall back to California law to determine if they can do this.

    it seems to me that if they disclose up front that doing standby might be required then the employee would have the ability to make the choice of whether to accept the employment or seek employment from a different entity.

    But this is turning into a bait and switch situation. Especially since every precedent has been set over the last nearly 5 years regarding NOT doing standby and even engaging in endeavors to prevent its necessity such as establishing maintenance contracts with service providers and vendors for them to be available to respond to after hours needs instead of employees.

    then out of the blue they want standby because one of our people is gone, and after doing it once they're trying to argue about whether they should have to pay for it, and then after being told to figure out the rules and disclose such rules ahead of time, they want standby again without yet having figured out the rules and making disclosure of them, like they think the employees owe them the courtesy of just bending over backwards and doing whatever they want and letting them "figure it out" after the fact, and then at the slightest resistance to this, they throw out the threat that they can force any employee to do standby even without consent, and saying that they're just being nice by asking for it instead of just assigning it.

    they're also trying to take a 5 minute phone call out of a total of 21 minutes of phone calls and say it was de minimus, when the law clearly states that they have to consider it all in aggregate, and 21 minutes cannot by any stream of consciousness be considered de minimus when you can put 15 minutes on a time card if they dont want to track exact time.

    any thoughts on these issues would be greatly appreciated, as knowing one's rights and the nature of our states laws would help one to regulate one's demeanor appropriately with regard to these issues.

    thanks!

  • #2
    Originally posted by arythmic View Post
    they're also trying to take a 5 minute phone call out of a total of 21 minutes of phone calls and say it was de minimus, when the law clearly states that they have to consider it all in aggregate, and 21 minutes cannot by any stream of consciousness be considered de minimus when you can put 15 minutes on a time card if they dont want to track exact time.
    I can point you at the regulation that is basically the federal FLSA regulation (29 CFR 785.47) for De Minimus time worked. If the employer is playing games with not paying based on actual hours worked, the normal recourse is a wage claim with CA-DLSE.
    http://ecfr.gpoaccess.gov/cgi/t/text....442.2&idno=29

    To the best of my knowledge, it is legal for most employers to place most employees on indefinate on-call/standby status.

    I have no opinion on your opinions.
    Last edited by DAW; 12-26-2010, 03:05 PM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      There is nothing in the law of any state which prohibits an employer from putting an employee on standby status, with or without the employee's consent.

      Whether your union contract permits it or not is an issue I cannot address.
      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


      • #4
        more

        I can understand that on the surface, it may appear to be the case that an employer can put an employee on standby status, with or without the employee's consent simply because there isn't a law that says they can't. However, after thinking about it in further depth it seems to be that in the absence of a law that says they CAN'T, there would be no power given to them to do so, unless there was a law that says they CAN.

        In the absence of THAT law, then wouldn't there be no power given to them unless it was somehow otherwise agreed to by the individual, collective bargaining unit, or unless it was disclosed up front as a part of the job being hired for? Having done none of that, I cant understand how there would be any implication that the employer could force that kind of servitude out of the employee. It's a bait and switch situation. They SAY they're hiring for a 8-5 position, and then they say "now you have to work 24/7". What if someone has two jobs? When the first employee decides to exercise its supposedly legal managerial right make the employee be on standby anytime, then the employee is suddenly violating the restriction of not doing anything that would prevent them from performing their standby duties, simply due to the fact of having the other job. So that effectively gives the first employer the right to force the employee to quit their second job. If the second job chooses to exercise the same right, then the employee is violating that same restriction simply by the fact of having the first job. The second employer will want to exercise the same rights as the first. Who's in the right? Who has priority legally? I see no reason why an employer can do this, and every reason why they can't. But I'm being told it's no legal problem at all. That's fine, if that's how it is, I can go from there, but now tell me why.

        If the employer CAN truly force an employee to do standby anytime it wants the employee to do so, then for the rest of my life I can never drink alcohol, never go see a movie, play, or musical in a theatre, never fly on aircraft, go on a ship, etc. In my mind it's involuntary servitude and the fact that they pay for it doesn't make it ok.

        I guess what I want to find now is some way that the employer CAN do this because I'm not seeing it... Once I can prove to at least myself that the employer somehow has this kind of universal power over an employee's personal life then I can live with having to choose between accepting it or quitting my job. At least it will be a clear choice that I can make or not make on my on volition. But as long as there remains absolutely nothing giving an employer this ability, it's going to be a problem for me.

        Thanks for any further thoughts!
        Last edited by arythmic; 12-26-2010, 02:47 PM.

        Comment


        • #5
          http://en.wikipedia.org/wiki/At-will

          http://en.wikipedia.org/wiki/Common_law
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            In the absence of a law prohibiting an action, that action is presumed legal. Therefore, your assumption that there must be a law giving an employer permission to put an employee on standby is faulty. Whether you like it or not, it really is true that it is legal because there is not a law that says they can't.

            You are free to take the matter up with the Department of Labor or with an employment attorney if you don't believe us.
            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


            • #7
              Ok, so this all means that the employer in fact does NOT have the right to force an employee to be on standby, but they DO have the right to terminate an employee if that employee refuses to do the standby.

              Therefore an employer can compel, not force, an employee to be on standby anytime it wants to.

              So when a manager says "I can put you on standby anytime I want, without your permission or consent, that's within my managerial rights." They are mistaken. What they should instead say is "Even though I can't MAKE you be on standby, I CAN fire you for not doing it whenever I want."

              They cannot MAKE any employee do the standby, but they CAN "schedule" the employee to be on standby - the action of scheduling such a thing or "putting the employee on standby" would be presumed legal. If the employee then refused to do the standby for whatever reason, the employer would have the right to seek to terminate employment subject to the requirements of the collective bargaining agreement. All of this discussion has been in a binary "can" or "can't" context, so next, the concept of reasonability comes into play. It would be determined by the content of the collective bargaining agreement.

              If there is any clause in the collective bargaining agreement, it prevails, but in the absence of any clause in such an agreement to determine proper handling of something, it would fall back to the concept of at-will employment, or any law or precedent that addresses the matter.

              The big remaining question then, will be, "what is considered reasonable?"

              Therefore, if I don't like the way things are going, my options are to quit, be fired, or work it out with the union. At my job the employer cannot terminate an employee without a meet-and-confer with the union, except in extreme circumstances, therefore my union is where I need to look if the matter needs further resolution.

              Thanks all!
              Last edited by arythmic; 12-26-2010, 03:56 PM.

              Comment


              • #8
                If you want to put it that way. No matter how you slice it though, it is the employer's opt, not the employee's, what hours are worked or whether or not the employee is on standby. The employer does not need the employee's permission, and the employee can be fired for refusing. The employee does NOT have any legal recourse to avoid being put on standby, and his only option if he does not like it, and if there is no union contract prohibiting it, is to quit.

                If you want to call that, the employer being mistaken if he says he can force standby, that's your call. But it's semantics.
                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


                • #9
                  The next matter at hand is whether or not an employer antagonistically waving their rights in an employee's face is a form of harrassment.

                  It seems to me that it will be a question of whether or not it was simply a statement of fact.

                  For instance if a non-manager supervisor says on multiple occasions "i have seniority so i can bump you from your vacation" - this kind of taunting is not called for, especially because research has shown that "seniority" can only apply when multiple people are applying for the same vacation time, however once the vacation is approved and the vacation form is signed by management, that is irreversible, so in that situation, a supervisor who believes they have "seniority" over a subortinate can in fact NOT "bump" the person from their vacation.

                  Therefore because the claim was false, the behavior of the supervisor might be something that can be pursued to have it corrected.

                  if a manager says "I can put you on standby anytime I want, without your permission or consent, that's within my managerial rights." is this a benign notification of some other fact that isn't being accurately represented, or are they trying to scare an employee into submission by threatening something that may or may not be found "reasonable" under the collective bargaining agreement?

                  given that we have found that the claim is essentially true, why does an employer choose to flaunt it? and where does the boundary lie between simply making the statement, versus dancing around the office chanting "neener-neener-neener, i can make you do standby, even if you dont want to!"

                  this topic of discussion may be out of the scope of what can be resolved here...

                  Comment


                  • #10
                    None of what you described in your most recent post is illegal.
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                    Comment


                    • #11
                      the final matter at hand is what an employer can do while an employee is on standby and what is considered work and what must be compensated. I have seen much on this topic in my research so i may have some questions inspired as i go over it.

                      one of the problems is that the employer seems to want to be able to utilize it's ability granted to it due to an employee being on standby status, but then claim that it does not have to compensate the employee for the interruptions it causes in that employee's personal life. The end result is that the employer "gets" to force the employee into uncompensated adverse impact to their personal life, which seems wrong.

                      if an employee is on standby and required to answer a company cell phone, and the employer keeps calling the phone repeatedly throughout the night (via automated system), preventing the employee from sleeping, causing the employee to have to look at the phone, listen to voice mails, read notifications, and have their whole day essentially ruined for 8 hours between 4am and noon because they were deprived of 4 hours of sleep and then had to try to make up for it over the next 4 hours while this behavior continued, shouldn't that time be something the employee gets compensated for? especially considering that the employer had no true valid reason for the behavior and that there was indeed no cause worthy of the adverse impact on the employee's personal life, but the employee had to suffer it anyway?

                      Then the employer later tries to say that this activity is not compensable, probably because they don't feel that it benefited them all that much, without realizing that the true benefit was their doing it in the first place. And then they try to throw in there, the thing about calls being deminimis which matter was previously addressed in this thread.

                      to me this doesn't seem right - to be able to have such an adverse impact on an employee's personal life with no responsibility whatsoever to compensate. especially since my research has pointed to a precedent that an employer can pay an employee to do nothing if it so chooses. therefore an employer can pay an employee to NOT get a half a night's sleep, if it so chooses. however, an employer cannot force an employee to NOT get a half a night's sleep, and then not face any repercussions for doing so, such as having to pay the employee.

                      This problem will become especially at issue if/when this kind of behavior takes place before an employee must show up for their regular shift, rather than on weekends, and even more especially if it begins before an employee has had their required amount of rest period time.
                      Last edited by arythmic; 12-26-2010, 04:43 PM.

                      Comment


                      • #12
                        Agree, take our word for it - it's not illegal.
                        You're certainly welcome to talk to the DOL or an attorney.

                        arythmic, your last post wasn't there yet when I started typing mine - I was replying to Patty & your prior post.
                        Last edited by Betty3; 12-26-2010, 06:51 PM.
                        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                        Comment


                        • #13
                          Originally posted by arythmic View Post
                          if an employee is on standby and required to answer a company cell phone, and the employer keeps calling the phone repeatedly throughout the night (via automated system), preventing the employee from sleeping, causing the employee to have to look at the phone, listen to voice mails, read notifications, and have their whole day essentially ruined for 8 hours between 4am and noon because they were deprived of 4 hours of sleep and then had to try to make up for it over the next 4 hours while this behavior continued, shouldn't that time be something the employee gets compensated for?
                          Possibly. Just not for the reasons you mention.
                          - Hours worked are hours worked. Minutes worked are minutes worked. If a work related call occurs, and you have to look at the phone, listen to voice mails, read notifications, then you have time worked which needs to be paid, the same as any another time worked. If the calls happen say once a year, and do not take much time, then the employer has a De Minimus argument (29 CFR 785.47). If the calls happen many times each day, the De Minimus argument is gone, even if each of the calls is short. There is a very good legal argument that the aggregate time spent on the calls must be paid.
                          - As regards to you "right to having a life", the problem is that FLSA is a 1930s law, and every single possible argument that you could ever come up with has already been tried by someone, probably a whole lot of someones, who probably mostly lost in court or administrative hearings. There is an actual on-call regulation (29 CFR 785.17) which has a huge amount of case law associated with it, including some U.S. Supreme Court decisions. Things like the "right to drink" or the "right to travel whenever you feel like it" are very dead issues as far as the courts are concerned (your side lost, probably before you were born). The courts in their wisdom have come up with a "sufficiently restricted" test, which generally means look at all "factors" and all prior cases and come up with the same answer that all other courts have with similar factors. If you MUST stay at home waiting for the phone to ring, then you have a possible on-call argument. But this is not a very employee friendly regulation, it has a huge amount of case law, meaning very settled "law".

                          At some point a bad employer is a bad employer. The only real cure for a bad employer is change employers. Now, if you think that the employer owes you money, file a wage claim with CA-DLSE. Might work. Might not work. Does not cost you a dime to try.
                          http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm

                          If you are really serious about any this, and not just venting, download a copy of the CA-DLSE manual and learn what the actual rules are. CA-DLSE has a low tolerance for people who use their wage claim process for venting. You have a much better chance of winning if you actually read the manual and try to phrase tight arguments that reference actual legal rules.
                          http://www.dir.ca.gov/dlse/Manual-Instructions.htm

                          And like it or not, there are many type of law. Certainly "statutory" law like FLSA or IRC, but also regulatory, administrative and common law. Court decisions are a type of law. Employers doing things for several hundred years and all related court decisions saying that the things done were legal are a type of law ("common law" to be specific).
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

                          Comment


                          • #14
                            Originally posted by DAW View Post
                            Possibly. Just not for the reasons you mention.
                            - Hours worked are hours worked. Minutes worked are minutes worked. If a work related call occurs, and you have to look at the phone, listen to voice mails, read notifications, then you have time worked which needs to be paid, the same as any another time worked. If the calls happen say once a year, and do not take much time, then the employer has a De Minimus argument (29 CFR 785.47). If the calls happen many times each day, the De Minimus argument is gone, even if each of the calls is short. There is a very good legal argument that the aggregate time spent on the calls must be paid.
                            That's pretty much what my other research has led to as well.

                            I (and other workers too) contend that if a call comes in during the middle of the night and awakes an employee, then the employee handles the call, and is allowed to return to sleep, that is one thing. However, if the calls keep coming in preventing the employee from sleeping, then all that time prevented sleeping is related to the calls and only ends when the employee is finally released and allowed to return to sleep. If it takes about 15 minutes or so to get back to sleep (time burdened on the employee as a result of the call) and then another call comes in preventing this, and that call is handled, and then the process happens again, this time after 15 minutes the employee is allowed to return to sleep for 45 minutes before receiving another call, then the "time worked" is the call times, plus the 15 minutes, times 3, of associated loss of sleep that was a part of, and resulting from, the calls. 45 minutes later the process occurs again, same deal. the 45 minutes the employee was allowed their regular sleep can by no stream of thought be considered work time, however all this time interrupting the employee's life is causing additional time spent by the employee as a result - each of the 45 minute blocks of lost sleep resulting from the calls will be made up for after the employee's normal waking time would have occurred, as their body attempts to acquire the amount of sleep it needs. however, that additional needed sleep continues to be subject to the same interruption process - 45 minutes on, 45 minutes off. at some point however, getting back to sleep just isn't going to happen. that removes the 15 minutes of lost sleep time caused by calls when they come in, and the employee can engage in the rest of what's left of their regular day. so the total work time is all the total time of the calls themselves, plus the associated lost sleep time they caused for the second 4 hours (the first 4 hours was when the employee was actually sleeping), plus the associated lost sleep time they caused during the 4 hours following, of trying to make up for lost sleep, minus all the time the employee was allowed to actually sleep during this process.

                            if the employee sleeps from midnight to 4 am and then endures this process from 4 am to noon, then doing the math shows the employee engaged in 4.25 hours of work time plus the length of the calls themselves, and during all this was allowed to get 3.75 hours of sleep to account for the second half of their sleep requirement, which adds up (because the last 15 minutes is spent awake engaging in their personal day after the last call, although if the calls continue, they are not interrupting sleep so only the call time itself impacts the employee)

                            Comment


                            • #15
                              It is an interesting argument, but it is very likely other people have made exactly the same argument, and it has been decided. File your wage claim. It works or it does not. But making the same argument over and over again on this website arguably accomplishes nothing. Everyone on this website already knows that clever arguments by themselves accomplish nothing.

                              Probably not what you want to hear.
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

                              Comment

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