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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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"On-call overnight support"

Resolved Question:

My union agreement with the employer reads that "on-call overnight support is counted as 2 hours per night toward benefit eligibility". (1) What do the words "on-call" mean? (2) Does it have any legal significance? I work overnights and are paid by the hour, which means that I am required to be on the premises from 10pm to 7am. This does not seem like "on-call" for me, where I would not be required to work unless specifically called on to. (3) Right? (4) If there is an ambiguity on the agreement, who does it benefit? (5) Is it legal for an employer to count some work hours and not others towards benefit hours (to determine fulltime/partime status/benefits such as sick, vacation, health insurance etc)?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

In California, an employee is entitled to compensation for any time that he or she is subject to the "control of the employer" or "suffered or permitted to work." If an employee is completely unrestricted to use his or her time for their own purposes, they are not under the "control of the employer" and, thus, need not be paid. HOWEVER, if the employee is so restricted that she cannot pursue personal activities and come and go as she pleases, the employer is considered to have direction and control of the employee.

The DLSE has adopted the test which the California Supreme Court announced in the case of Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, and will apply that test to determine the extent of control.

The Madera court applied a two-part preliminary analysis to determine whether the time was compensable. The first part of the test measures whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer's requirements and policies. Second, is the employee substantially restricted so as to be unable to attend to private pursuits?

Regarding the second prong of the test, the Madera court also indicated that the trier of fact must examine the restrictions cumulatively to assess their overall effect on the worker's uncompensated time. In other words, the net impact of the restrictions must be considered. Note that the court did not hold that no restrictions as to time and space could be placed on the employee; only that the restrictions could not be substantial enough to prevent the employee from attending to private pursuits.

The factors to be considered in determining whether an employee is on controlled standby are similar to the federal guidelines and include:

(1) whether there are excessive geographical restrictions on employees' movements; (2) whether the frequency of calls is unduly restrictive; (3) whether a required response time is unduly restrictive; (4) whether the on-call employee can easily trade his on-call responsibilities with another employee, and (6) the extent of personal activities engage d in during o n-call time.

Thus, the words "on-call" do not necessitate a particular compensation scheme, and they have no particular legal significance on their own. Rather, what that on call time actually consists of determines how the employee will be paid. Only those hours that you are being paid for on call time would typically count toward full-time/part-time status, benefits, etc.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Patrick, Esq., Lawyer
Satisfied Customers: 6792
Experience: Significant experience in all areas of employment law.
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