Having employees on-call or on standby allows you to serve your customers 24 hours a day. A great business model if you are paying your employees correctly but could have expensive consequences if you don’t. Failure to properly pay employees could be considered “wage theft” in California.
Are you paying employees correctly?
In California, an employer is obligated to pay the wages of a non-exempt employee for all time that the employee is under the control of the employer. The predominant factor in determining whether employees are under an employer’s control is their ability to engage in personal activities. The information below applies to your non-exempt employees but whether you are classifying employees correctly is another matter. Let’s assume that you did.
Are your employees under your control and entitled to pay?
Employees are required to be on-call or on standby at the work site.
Yes. They are under your control and must be paid for that time even if they are just watching Office Space, taking a nap, or on Facebook, waiting for something to happen.
Employees are on-call or on standby away from the work site.
It depends on the restrictions that you place on your employees while they are on-call or on standby.
- Do you require employees to be within a certain number of miles of work while they are on-call (geographic restrictions)?
- Are there frequent call backs while employees are on-call?
- Is there a fixed time limit for employees to respond while they are on-call?
- Are employees restricted or prohibited from trading on-call shifts or responsibilities?
- Are employees restricted from engaging in personal activities (e.g. drinking alcohol) while they are on-call or on standby?
If your answer is YES to any of the questions above, the test would be whether the restrictions are excessive or unduly restrictive. Needless to say, this analysis is highly fact specific.
Time spent by agricultural employees on a bus provided by their employers, which took them to and from the field, constituted hours worked for which employees are entitled to pay even though the employees were free to read on the bus or perform other personal activities.
On the other hand, coroners who were required to respond to a page reporting a death within 15 minutes, by telephone or two-way radio, and to investigate “as soon as possible” without a specific in-person response time is not unduly restrictive and did not entitle the coroners to on-call overtime pay.
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