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On call time/On call days California/Mandatory use of personal cell phones

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  • On call time/On call days California/Mandatory use of personal cell phones

    Hi, Non-exempt (hourly) employee with a major corporation. One weekend a month we are required to wear the walkie talkie and at the managers notice, drop everything and be at a specific place in the work truck within 2 hours. this place we may have to go is about 2 hours away or closer, so i have to be within a reasonable distance from my work truck on my on-call weekends.
    Do i get paid for this time even if there is no call?

    Our work month consists of 20 work days and the other business days (sometimes two or three) we just sit at home on call and get paid for it because the boss has no work for us because we got it done according to the plan (20 days). My manager just instituted a policy where we have to sell a certain amount (quota) and if we don't sell that amount then we do not get to take the last days of the month as on call. When i was hired i was told i did not have to sell anything.
    This on-call, is a different type of on call. We do not have to be in a certain spot within 2 hours, rather give the customer a call within 2 hours and decide if we do indeed need to go out.

    Further more, we are expected to use our personal cell phones for company calls, even though the walkie talkies we have carry build in phones that are not activated (nextel). what is the policy on compensation for that? This is not just at home, but in the field as we are between jobs.

    Thanks

  • #2
    Generally speaking, having to wear a walkie-talkie and having to show up within two hours of a call does not meet the criteria for requiring pay for the time you are on call and not called in, because two hours does not severely restrict your personal activities. It's only one weekend per month.

    As a nonexempt employee, the employer is not legally obligated to pay you for any "bench time". The fact that they have been doing so in the past is more than the law requires.

    Now, regarding use of your personal cell phone for business calls, that must be reimbursed under California law. See Code Section 2802 here:
    http://www.leginfo.ca.gov/cgi-bin/di...file=2800-2810
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Would that still apply when travel time to get to the location takes all, or nearly all, of the 2 hour notice? I can see a 2 hour notice to get to a location 1/2 hour away as not being a sever restriction, but wouldn't having to drop everything and leave within minutes be a significant restriction? You pretty much have to be sure anything you do can be immediately dropped.

      -Tim
      Busy B Realty - Honey Run Apiaries

      Comment


      • #4
        Again, generally speaking, that would still apply. Here is the FLSA reg regarding being called back on a day where the employee has already left for the day. As you can see, they aren't very definite.
        http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.36.htm

        California may have stricter standards, but I'll leave that for one of our more savvy California responders. Having to "drop everything" doesn't make it, in and of itself, compensable.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Perhaps, although we are now talking about a "maybe yes, maybe no" argument, instead of hard law. Below are opinion letters issued by CA-DLSE about on-call pay.

          http://www.dir.ca.gov/dlse/opinions/1994-02-16.pdf

          http://www.dir.ca.gov/dlse/opinions/1993-03-31.pdf

          http://www.dir.ca.gov/dlse/opinions/1992-01-28.pdf

          http://www.dir.ca.gov/dlse/opinions/2002-04-08.pdf
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            read all the links, thanks

            So if I read all the links correctly, I need to apply the formula and even then it is still open to interpretation. I believe that i am entitled to compensation because i can not do certain activities because i may or may not be called out. Example, go to a movie, drink alcohol, drive over an hour away, ect.
            MY employer may (and does) believe differently.
            Does this specific circumstance need to go before a court before it is resolved?

            What about my phone? Do i need to wait untill i go over in my minutes and expect reimbursement for the overage? What happens if my phone breaks? It has and it needs to be fixed, its my phone and i have to pay for it? I broke it while performing a call that work told me to make.

            What about the oncall days at home i did have that will be taken away from me this month unless i make my managers quota? this is a policy of this branch and not one of other branches in the company.

            thanks for all the help
            and links

            Comment


            • #7
              Don't even go there as far as drinking alcohol is concerned. The fact that you cannot drink alcohol is NOT factored into whether you must be paid for on-call time or not.

              Is there some reason you can't go about your own activities while wearing a pager or carrying a cell phone? These days, with so many interactive ways to contact someone, it's rare that they are actually tied to a phone and unable to leave the house.
              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


              • #8
                Originally posted by cbg View Post
                Is there some reason you can't go about your own activities while wearing a pager or carrying a cell phone? These days, with so many interactive ways to contact someone, it's rare that they are actually tied to a phone and unable to leave the house.
                As i stated previously, I would not be able to go to a movie, or perhaps a baseball game, i would have to stay a relative distance to my work truck in case i get 'the call.'

                It is not simply a "don't go on vacation" scenario, it is more of a "keep your phone on, you may have to be at X within two hours and X is two hours away from you" I would not be able to venture more than a couple miles from home and not participate in any time sensitive activities (movies, ice skating, even a nature walk in the near by hills).

                Friends and Family get paid on call time for the same scenarios I am in, are their employers kinder than mine? Since it appears it is not law, it is a matter of employer interpretation.

                Comment


                • #9
                  Our opinion and $2 won't get you a large coffee at Starbucks. If you want a definitive opinion, contact the Division of Labor Standards Enforcement and ask them.

                  I don't understand why you can't go to a movie, though, or go skating or shopping or whatever. You just have to do it locally. Wear the pager/cell phone.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                  Comment


                  • #10
                    Of course you can go to a movie or a ball game. IF you get a call, you may have to leave early, but there is nothing whatsoever preventing you from going except your own beliefs. What if you don't get a call? Then you're fine.
                    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


                    • #11
                      Originally posted by puzomatc View Post
                      As i stated previously, I would not be able to go to a movie, or perhaps a baseball game, i would have to stay a relative distance to my work truck in case i get 'the call.'

                      It is not simply a "don't go on vacation" scenario, it is more of a "keep your phone on, you may have to be at X within two hours and X is two hours away from you" I would not be able to venture more than a couple miles from home and not participate in any time sensitive activities (movies, ice skating, even a nature walk in the near by hills).

                      Friends and Family get paid on call time for the same scenarios I am in, are their employers kinder than mine? Since it appears it is not law, it is a matter of employer interpretation.
                      I have been in your position and understand your frustration. Yes, you could go to a movie, but in order to be ready to leave for a potential call you'd probably have to drive in your work truck and have your work clothes on in order to make sure you could make the time frame. Am I correct?
                      I had a job that required on call weekends and I hated it because my time was never really mine. The company (in California) I worked for did pay an hourly wage which was less than minimum wage for carrying the pager, if I had to answer a call then I was paid my usual wage. Even if I didn't go out on the call , but spent time on the phone determining if I needed to - that time was reimbursed.
                      I think you need to call the Division of Labor Standards and run it by them for a definitive answer.

                      Comment

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