On call while on vacation Oregon

[aocpor]

Husband was one of two salaried employees supporting a specialized software system. For 5+ years they have shared on-call duties since they are the only two able to support this system. Other employee retired, husband received promotion to fill his position, and was told they would be looking to backfill husband's position soon.

Because he has accrued too much vacation time and will begin losing it, he took vacation this week. He was paged every day, both weekends, weekdays he was actually on vacation, all of it. He worked anywhere from 2-5 hours each of those days.

What does that time count as? Vacation? Are they really allowed to prevent him from effectively using his time when he's off the clock? This wasn't an issue during the 5 years there were two people to do this job (which is a whole other issue, he's now doing the work they paid two people for, but thankfully he's been able to spend some extra time making the system more stable which means he spends less time putting out fires).

Thanks for your help.

[moburkes]

What does that time count as? Vacation?

I don't know.

Are they really allowed to prevent him from effectively using his time when he's off the clock?

Yes.

[aocpor]

I don't know.
Yes.

Wouldn't that be a violation of contract, stated or implied? I'm not clear how the whole engaged to wait/waiting to be engaged thing can be so clear, and yet he can earn/use vacation time but still be expected to work. That would seem to be a conflict of some sort.

Can you point me to a source that explains how employees can be required to work while on vacation so myself and my husband can better understand the terms? Thanks.

[DAW]

The problem is this. The rules on pay based on time actually worked and "waiting to be engaged" and such are all federal law (FLSA). You can find the federal rules (regulations) at the following location. Federal law is in effect everywhere. States can have rules more favorable to employees, but states (and employers) cannot make federal rules go away.

http://www.dol.gov/dol/allcfr/ESA/Ti.../Chapter_V.htm

The rules on vacation are not federal law. Vacation is not a federal law concept in any meaningful sense of the word. What rules there are on vacation are a function of state law and company policy. The federal government is completely ok with the employer eliminating all vacation at a moments notice because the bosses favorite sports team lost. It just is not legally a federal concern.

Your other problem is that as a subset of the federal Common Law principal of Employment At Will, the employer can basically legally order the employee to do pretty much anything the employer wants unless prohibitted by law. States can and sometimes do put tighter restrictions on this then the federal rules, which is why employees in states like California have better protections then in states like Florida. But even in California which has the toughest vacation rules in the country, what you describe is a legal practice by the employer. I spent the better parts of two working days in a hotel in Hawaii one year (on vacation) because some moron managed to reformat both the computer and backup computer running the company's data collection network. Management was very apologetic but I would have been very fired if I had not cooperated.

I am not expert on Oregon rules, but the smart money is what you describe is legal there too.

Sorry. I understand that this is not the answer you are looking for. I can suggest that you read the employer's actual vacation policy. In fact, get copies of all the employer's policies and read them. There may indeed have been a very dumb person who wrote these policies and you may indeed have some legal recourse because of this. Again, however, the smart money says that this is not very likely.

[aocpor]

[QUOTE=DAW;915001]The problem is this. The rules on pay based on time actually worked and "waiting to be engaged" and such are all federal law (FLSA). You can find the federal rules (regulations) at the following location. Federal law is in effect everywhere. States can have rules more favorable to employees, but states (and employers) cannot make federal rules go away.

http://www.dol.gov/dol/allcfr/ESA/Ti.../Chapter_V.htm

The rules on vacation are not federal law. Vacation is not a federal law concept in any meaningful sense of the word. What rules there are on vacation are a function of state law and company policy. The federal government is completely ok with the employer eliminating all vacation at a moments notice because the bosses favorite sports team lost. It just is not legally a federal concern.

Sure, but this isn't an issue of not earning future vacation pay, this is an issue of a benefit already earned, but not being able to be used. To me that seems a bit like retroactively deciding you earned your money, but are not allowed to spend it. Whether it's federal, state or contract law is kind of irrelevant to me, it would seem to me it would be actionable on one of those counts however.

Your other problem is that as a subset of the federal Common Law principal of Employment At Will, the employer can basically legally order the employee to do pretty much anything the employer wants unless prohibitted by law. States can and sometimes do put tighter restrictions on this then the federal rules, which is why employees in states like California have better protections then in states like Florida. But even in California which has the toughest vacation rules in the country, what you describe is a legal practice by the employer. I spent the better parts of two working days in a hotel in Hawaii one year (on vacation) because some moron managed to reformat both the computer and backup computer running the company's data collection network. Management was very apologetic but I would have been very fired if I had not cooperated.

But the time you worked was taken as vacation time, not work time? Because my understanding was that the federal government was pretty picky about accurate breakdown of employee hours because each type has different tax implications which could potentially be construed as tax fraud...

Thanks.

[mikswi]

Not to be a "Monday morning quarterback" here but if I was the ONLY one that could keep the system running........making sure there was someone competent to cover me in my absence would have been my very first and biggest concern when planning a vacation, especially if it was a last minute vacation.

That being said, I highly doubt that you have any recourse. I think all you will get out of this is whatever the employer gives you as "compensation" for your lost time. A position like yours though, one is never really "on vacation". You perform a very important and time sensitive service for the company. One that they could not wait a week(s) for your return and still maintain business as usual. Start looking for a replacement helper.......

[aocpor]

Not to be a "Monday morning quarterback" here but if I was the ONLY one that could keep the system running........making sure there was someone competent to cover me in my absence would have been my very first and biggest concern when planning a vacation, especially if it was a last minute vacation.

Because my husband clearly does the hiring.... or assignments. TPTB have said again and again they'll hire someone, but have not. Not clear where you got the impression that it was a last-minute vacation, since it wasn't.

That being said, I highly doubt that you have any recourse. I think all you will get out of this is whatever the employer gives you as "compensation" for your lost time. A position like yours though, one is never really "on vacation". You perform a very important and time sensitive service for the company. One that they could not wait a week(s) for your return and still maintain business as usual. Start looking for a replacement helper.......

I really need to get into a business where I get to hire co-workers.... That's a new one on me. In my experience, one must have the authority to do so.

[Pattymd]

And, although the OP mentioned "salaried", we never did determine whether he was exempt or not. Did we?

[aocpor]

And, although the OP mentioned "salaried", we never did determine whether he was exempt or not. Did we?

He is exempt.

[mikswi]

I really need to get into a business where I get to hire co-workers.... That's a new one on me. In my experience, one must have the authority to do so.

Usually one in your position has the authority to hire/fire/recommend. I apologize for overestimating your capacity.

[aocpor]

Usually one in your position has the authority to hire/fire/recommend. I apologize for overestimating your capacity.

I'll say once again, it's my husband, not me, and having a specialized skill set does not equate to having the authority to hire and fire (nearly anyone has the authority to recommend).

[cbg]

Having the authority to hire and fire is NOT a requirement for exempt status (except for the executive exemption).

[Kick Me]

Aocpor, at the end of the day, your hubby's vacation was intruded upon. Hopefully his company will see fit to fairly compensate with perhaps a small bonus or by returning part of his vacation time. Perhaps at least not letting his vacation time expire or otherwise be forfeited due to his not being able to use it.

The good part of the end of the day is, JOB SECURITY. Sounds like they would be up a creek without him.

Not much of a consolation when you are trying to enjoy a vacation without interruption but a pretty good consolation when you look around at how easily many people that post here are disposed of.

Getting a copy of those company policies sounds like a very good idea to me. If he/you does it now there won't be a need to ask for them and have to review them when/if something else comes up.

Take Care and hopefully he will have some back up for your next get away and with any luck that will be soon.

KM