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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4984
Experience:  Extensive experience representing employees and management
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What is law regarding non exempt employee and call back pay? I do not get paid to carry a

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What is law regarding non exempt employee and call back pay? I do not get paid to carry a pager but am required to do 24/7 coverage for call. I get a minimum call back pay depending on whether phone consult or call back but they are trying to change to opnly paying the productive time. I am not paid to carry the pager though 24/7 call assigned. What are my rights? if not paid to carry pager do I have to answer?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

As a non-exempt employee your employer is only required to pay you while you are under the employee's control.

Unfortunately, carrying a pager 24/7 doesn't constitute being under the control of the employer, unless you are required to be at the employer's premises or witihin a certain distance from the employer, so you wouldn't be entitled to be paid for that time.

Unfortunately, even though you are not paid for all the time that you're required to carry the pager, you can still be required to answer the pager, although, of course, you're entitled to be paid for that time.

To read more about the definition of compensable work time please see the information from the Department of Industrial Relations here:

http://www.dir.ca.gov/dlse/CallBackAndStandbyTime.pdf
Joseph, Lawyer
Satisfied Customers: 4984
Experience: Extensive experience representing employees and management
Joseph and 3 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I just rated the first response as excellent but submitted an additional question. I am hoping it will be naswered as well. My work is trying to take away the non productive pay they provided due to not payin gus the wages to carry the pager. Others who are on call recieve $6/hr to carry the pager whether they get paged or not and have smae call back guidelines that they must return page within 15-30 minutes. We are told that we can drink, take medication, travel while on call but that if we fail to respond, we will get penalized on outr evaluation. They paid us 1 hr compensation for any length of phone call and 2 hours if we needed to log into our system no matter how long it took. Can they take that away and only pay us the productive time and still not pay us to carry the pager?

Expert:  Joseph replied 1 year ago.
Yes, since you have primary control and freedom over your personal time when you are required to have the pager, your employer is not required to pay you for the on-call time when you are carrying the pager.

Unfortunately, your employer is only entitled to pay you for the actual time spent on the phone call, or the amount of time that you spend working on the issue when you log into the system instead of paying you a flat rate of 1 hour of compensation for any length of phone call and 2 hours if you need to log into the system.
Customer: replied 1 year ago.

Are there any legal repercussions to me as the employee if I do not answer the page since guidelines for carrying the pager are not clear and concise.


Also - my job requires that I have broadband internet access to access their system but consider this a convenience to me - legally can I say no to supplying this for them. They do not compensate me for the internet service, my computer or when they utilize my personal cell phone.


Are there any laws to protect me regarding all of this. The research that I have done on my own, of local businesses in same industry, are paying their employees for what my employer is not, can I use this when speaking to HR?

Expert:  Joseph replied 1 year ago.
Yes, unfortunately, as an at-will employee, your employer can discipline you for failing to answer the pager, up to and including, termination.

Unfortunately, your employer isn't obligated to pay you for broadband interent access and for the use of your personal cell phone when you are called for work. An employer, can, of course, decide to compensate employees for these expenses, but it is not required to do so.

Unfortunately, as I mentioned previously, the laws in this area are pretty one-sided in favor of employees.

However, due to the practices of other local businesses in the same industry, you definitely have a good 'fairness' argument to make to your employer that you and other similarly situated workers should receive compensation, since other employees are receiving compensation for what you and your co-workers are not.
Customer: replied 1 year ago.

Please explain to me what an at-will employee is.


Can you further clarify what you mean by the laws in this area are pretty one-sided in favor of the employees, do you mean the employers? Where can I get more cmplete information on those laws?


 


The statement in my job description only states that I will provide 24 hr rotating assistance to our service desk, (which right now due to lay-offs I am providing 24/7 call) it does not state that the job requires me to have the services I described. The hospital provides me a pager, can I only put contact information as my pager and not provide the convenience of immediate anytime response in regards to my cell phone and home phone?


 


How is it legal if I am an hourly employee who then is being requested to carry a pager but allegedly able to do anything personal while carrying it but if I can't respond or fail to respond, I could potentially get fired? This does not mke sense. My job requires the access of a computer but if I am engaging in my personal life, I do not have a computer in my back pocket.


I am sorry to beat a dead horse but trying to determine what I can do in all of this.


 

Expert:  Joseph replied 1 year ago.
Yes, every employee who is not unionized or who does not have a contract with his or her employer is an 'at-will' employee, meaning that he or she can be terminated at any time for any reason with or without any prior notice.

This stems from the employment at-will doctrine, which is codified in California Labor Code Section 2922, which states:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

You can decide to put down only your contact information for your pager if you do not want to provide the convenience of immediate response for your cell phone or home phone.

Unfortunately, as I mentioned, or meant to state, is that the law is very favorable to employers in this regard. As long as you are not in the control of the employer, and are allowed to be anywhere you want or do anything you want, while you carry the pager, you are not legally entitled to be compensated for that time.

Again, unfortunately, as an at-will employee, you can be disciplined or terminated, at any time for any reason (or no reason at all), including failing to repond to your pager. I realize that this is unfair and doesn't make any sense, but unfortunately, it is the status of the law.



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