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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 35395
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I would like to know about the rules / law regarding on call

Customer Question

I would like to know about the rules / law regarding on call pay for both exempt and hourly employees.

My company's practice is that once you reach a certain pay grade you are no longer eligible for on call pay.
Submitted: 4 years ago.
Category: California Employment Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm Doug, and I'm sorry to hear of the confusion.

Whether standby time off the work site is compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable “hours worked.” These factors, set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include

1. Whether there are excessive geographic restrictions on the employee’s movements;

2. Whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unfairly restrictive;

3. Whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and

4. Whether and to what extent the employee engages in personal activities during on-call periods.

Essentially, if the time to respond is 30 minutes or more, and the employee can go home and has freedom of movement---not stuck at the job site----then no standby time pay is mandatory. However, they must be paid normal wages for all time they work taking calls or responding to calls from customers.

Here is a good, albeit brief, State of CA evaluation of this issue:

http://www.dir.ca.gov/dlse/CallBackAndStandbyTime.pdf



You may reply back to me again, using the Reply to Expert link, if you have additional questions.

Would you please rate me highly now, based on my assistance to you in understanding the law.

I wish you the best in 2012,

Doug
Customer: replied 4 years ago.

I should have been a little more specific.


The company is Intel, some or all information technology employees are affected, I am not certain as to all or some, seems like it could be just my particular department.


 


Exempt employees through pay grade 6 are compensated, pay grade 7 and above are not.


 


Normally the on call phone which belongs to the company is passed from one employee to the next every week.


 


For those that are eligible a time card must be filled out, if it is not filled out within 2 pay periods there will be no pay only comp time off.


 


The company has made changes to the process for reporting time (filling out the time card on the company web site) without provide notice to affected employees.


 


In my case they have me working so hard it is next to impossible to remember to fill out the time card.


 


I am pay grade 6 and entitled to on call pay.


 


The on call person is expected to answer the phone or return the call within one hour and to be on site if necessary within two hours to deal with whatever emergency is at hand.


 


Failure to comply with expectations is grounds for disiplinary action which can lead to termination.


 


Not all grade 7 employees are required to be on call however grade 7 and above will not receive compensation.


 


If the situation requires the employee to be on site, the employee could be on site for many hours until the problem is resolved.


 


Please let me know if there are any other details I should provide.

Expert:  LawTalk replied 4 years ago.

Good evening,

I'm not sure what you are asking here---or what you are looking for. I answered your very specific questions as regards XXXXX XXXXX employer must pay on-call/standby pay.

I guess I should state the obvious----that an exempt employee is exempt----whether they work 100 hours a week at the office or stand by at home the entire time. Exempt is exempt. So all that is left are non-exempt employees---and as for them I have truly answered your question.

You have provided a boatload of information and I'm not sure what you expect me to do with it. The facts you presented do not change the law.

Precisely, what are you trying to get at here?

Doug

Expert:  LawTalk replied 4 years ago.
Good evening Gene,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards your question.

Is there anything else that I can assist you with? If not, and if you haven’t already, would you please now rate my service to you highly? Thanks in advance!

Doug

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