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Patrick, Esq.
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How is uncontrolled On-Call time payed? We are a small plumbing

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How is uncontrolled On-Call time payed? We are a small plumbing business trying to hire a dispatcher to answear the phones on the weekends. She will have the phone all day saturdays and all day on sundays. We are what is a legal and fair way to pay her.
Hello and thank you for entrusting me to answer your question.

In regard to on call time, employees in the state of California are entitled to compensation for any time that are 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

(5) the extent of personal activities engage d in during on-call time.

The simple requirement that the employee wear a cell phone, pager, etc., standing alone, does not require that the employee be paid for all the hours the device is on. Additionally, the DLSE does not take the position that simply requiring the employee to respond to call backs is so inherently intrusive as to require a finding that the employee is under the control of the employer.

Such factors as (1) geographical restrictions on employee's movements; (2) required response time; (3) the nature of the employment; and, (4) the extent the employer's policy would impact on personal activities during on-call time, must all be considered.

Thus, an "on call" employee whose duty it is to answer weekend calls would not need to be paid for all time which he or she "mans the phones" unless that responsibility in itself imposed restrictions on the employee that would mandate compensation pursuant to the Madera criteria described above. An employee whose duty it was to answer weekend calls would be entitled to pay during that time in which he or she actually answered calls and dealt with customers, generally speaking.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
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