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on call question Ma.

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  • on call question Ma.

    Sorry to resurrect a dead thread, but I have the same question as the original poster(OP), but from a "non-exempt" standpoint...

    I am a MA non-exempt employee, required to be on call 24/7. My employer pays me for all time worked. So if I get paged at 2 AM, and I work an hour, I get paid time and a half for that...no problem.

    My question is, similar to the OP, if I'm required to be "ready to work" when I'm on call, it severely limits my off hours activities. I have to stay within cell range, I have to be able to log on to my work network, so effectively, I can't go on vacation over the weekend to anywhere where I couldn't work. I can't even travel more than 30 minutes from my house, for fear that I wouldn't be able to get a network connection with my work laptop.

    Needless to say, my employer doesn't pay me for being "on call", only if I'm actually "working", even though they are placing restrictions on my off-hours. My understanding is that this is perfectly legal, but I don't understand how and why.

    My employer is basically saying, "ok, you're off the clock, I'm not paying you, but you have to stay within 10 miles of your house at all times, just in case I want you."

    Thanks...

  • #2
    on call question Ma.

    johnblacksox, you should have started a new thread with your question & not
    posted to another poster's old thread. I will start a new thread for you.
    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


    • #3
      The problem is this. The related rule comes from a 1940s era regulation (29 CFR 785.17). This regulation has sixty plus years of court and administrative decisions associated with it. Pretty much any argument that anyone can make has already been made (a lot) and is legally settled. This includes at least one U.S. Supreme Court decision.

      The regulation is loosely written to the point of being meaningless. So instead court and administrative decisions using phrases like "sufficiently restricted" have been issued. The rules are basically whatever the courts say they are, and historically the courts have not agreed with you on most of the points you raise. Your no more then 20 minutes minutes from home might have legs. It might not. There have been court decisions saying that the employee having to report physically to work within 15 minutes did not trigger paid time. There have also been court decisions that say 15-20 minutes did trigger paid time. The other problem is that all courts agree on an "all factors" test. Meaning that the judge is required to look at each and every factor and see how they weigh out. Not surprisingly, different courts come up with very different answers.

      http://ecfr.gpoaccess.gov/cgi/t/text...1.2.44.3.435.8

      I understand that this is not the answer that you are looking for.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        DAW, I believe the OP said can't be more than 30 (not 20) min. from home &
        must stay within 10 miles of home.

        However, as you said, an "all factors" test is applied.
        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


        • #5
          Good catch. I am aware of no court decision that considers 30 minutes to be "sufficently restricted". Or a 10 miile restriction. Or staying sober (not asked by OP, but often an issue). And you are correct that "all factors" must still be looked at by the court.

          FYI. I have a copy of American Bar Association book on FLSA and it devotes 4 pages to "on call". It discusses the major decisions available at the time the book was published. The big weakness is that it is not state specific (some decisions are). But basically if one was a lawyer involved with "on call", one would read these pages, try to find major court decisions that seem to support whatever point the lawyer is trying to make, and hope that the other side does not have the same book and that they do not look for court cases coming down on the other side of things. If one is willing to spend money, one would do a Lexus-Nexus search restricted to court cases in the specific juristiction. But at the end of the day, "on call" has historically been a very pro-employer regulation as called by the courts. And since there was a major US Supreme Court decision in this area, it is pretty hard for lower courts to stray too far from that decision.

          The key is to make sure that all time spent actually working is paid. Past that, the frequency of the calls is a key factor that get looked at. 15 one minute calls is 1/4 hour worked. BUT one minute calls every 15 minutes raises the possiblity of something more interesting (hours worked wise).
          Last edited by DAW; 05-01-2011, 10:48 PM.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Batty, I didn't take it that the boss said stay within 10 miles. I take it the OP is worried he won't be able to log into a work network or have cell coverage so he limits where he goes.

            Whether he has a valid concern or not I can't say but the limitations seem to be self imposed.

            Comment


            • #7
              I agree. We were just answering on what the OP said are his limits. (in order "to get to work" on time)
              Last edited by Betty3; 05-02-2011, 08:26 AM. Reason: add info
              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

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