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MA Standby VS OnCall Massachusetts

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  • MA Standby VS OnCall Massachusetts

    My employer requires us to carry an oncall cell phone when oncall. We are sent a message and have 5 minutes to repond then we are called. If we don't answer that call our service sends it to the first supervisor, then the manager, etc... If we miss a call we are written up. Two write ups you can be fired. Also as soon as we receive a call we have to be at a computer so we can work on the issue remotely if possible or we have to travel onsite.

    As I understood it with oncall you had to be free to use your time as you wish and have a number or pager were an employer can get in touch with you.

    Does working at a moments notice and having 5-10 minutes to repond still count as oncall? Also having to have a computer you can work from available at all times. (BTW they don't provide laptops for when not in the office)

    If this constitutes standby is an employer required to pay an hourly employee for the hours on standy and if so how much?
    Last edited by umpth82; 03-07-2010, 09:25 PM.

  • #2
    Possible duplicate post. http://www.laborlawtalk.com/showthread.php?t=257231
    Last edited by CatBert; 03-08-2010, 07:17 AM. Reason: Changed my wording...
    Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

    I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

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    • #3
      CatBert, I don't believe this is the exact same question as in the other thread.
      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.

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      • #4
        Originally posted by Betty3 View Post
        CatBert, I don't believe this is the exact same question as in the other thread.
        My mistake.
        Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

        I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

        Comment


        • #5
          OK, back to the question then.

          1. There is no hard "bright line" test associated with on-call. This is actually a 1940s era FLSA regulation with sixty some years of court decisions associated with it. And the courts do not agree with each other on this particular subject (something that happens a lot when there is no "bright line" test).

          2. Carrying a cell phone (or page) is legally nothing. Actually doing work at home or on the cell phone is hours worked. On these points the courts agree. The main point of interest in the OP's post was the computer. IF the employer is actually requiring the employee to stay physically next to a computer so that they can respond very quickly on the computer to the call, THEN we probably have an on call situation. HOWEVER, the more you change those facts, the less likely the courts will consider the situation on call. Carrying a cell phone by itself is not on call.

          3. Legally "on call" means that the employer has so restricted the employee's activities that the courts consider the employee to performing hours worked while waiting for the call to occur. However historically the courts have called this VERY tight. Many things that employees regard as too tight (no drinking, having to answer the cell phone phone, not being able to leave the area) are things the courts regard as legally nothing. This is very established law here, something that employees often do not want to hear. Employees want to be paid any time they think that they have been inconvenienced and the courts have a very long record of not agreeing with this. Legally we either have the courts agreeing that the employee's time is so restricted that the employee might as well be at work, or legally we nothing. There is no middle ground legally. No "well the employer must owe me something for having to carry the cell phone".
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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