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manning on call emergency cell phone New York

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  • manning on call emergency cell phone New York

    HI. I work for a non profit that deals with clients who oftern ned help or support after hours. We insituted use of an emergency cell phone that is rotated amongst 3 staff - 2 salaried exempt, one hourly non-exempt. We each have the phone for one week at a time (although my staff is very busy now and I have ahd the phone for 3 weeks - I am salaried exempt)

    I am concerned that having the ER cell phone will constitue as hours worked. Sometimes, when a call comes in it can be handled with a quick answer, others we need to go and address the problem. What is the best way to handle this?
    1) only myself and other salaried exempt worker take phone?
    2) allow other employee to have phone but she must call to ask permission before acting on a situation
    3) does she get paid some kind of rate for having the phone?
    4) what are the implications if she was at a party had one drink, responded to a situation and had an accident? I dn't want to tell her not to go out, because I assume then I would hav to pay her for all those hours (like the railroad does when someone is "on call"

    Any advice will be appreciated. Thanks

  • #2
    For the Non-Exempt employee only:
    - Having a cell phone per se is not hours worked.
    - Hours worked is hours worked. If the employee actually does something job related that benefits the company, that is hours worked. Answering the phone is hours worked. Talking to someone for business purposes is hours worked. Going somewhere in response to a call for business purposes is hours worked.
    - You can give the employee any legal orders you want to. You can tell the employee to call you first before responding to a call or pretty much anything else you want. It does not not mean that you refuse to pay the employee for working, but it does mean you can legally fire them for not following orders.

    Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      I don't think that requiring an employee not to drink while she's on call is restrictive enough to cause the on-call hours to be paid. Does someone have a definitive answer to that one?


      • #4
        I can give you a pointer to the federal FLSA regulation. This is a 1940s era regulation, obviously pre-dating cell phones, but still the only On Call rule recognized by federal DOL. This rule has a lot of court and administrative decisions associated with it. Like any other poorly written long time rule, not all court decisions say exactly the same thing, but 99%+ of the decisions that specifically talked about drinking did not consider that telling the employee to not drink is by itself causes on call pay to occur. Federal DOL in it's wisdom has created a regulation that has no "bright line" test, but rather one in which all factors need to be looked at and compared to basically every other decision with "similar" factors in the related jurisdictions (different major court juristicions can and have had somewhat different rules in this area).

        I have an ABA law book on the FLSA law that spends maybe 4 pages on On Call. The two things that struck me is the number of flat out contradictory decisions out there on this subject, but also that federal DOL administrative rulings tend to be mostly (but not always) pro-employer historically and also historically a significant majority of court cases tend to be pro-employer.
        Last edited by DAW; 02-08-2009, 08:12 PM.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


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