California Employment Law
California Employment Law Questions Answered by Legal Experts
Please take your time. I know if I propose the questions to my HR they will be negatively looked at. Any feedback is greatly appreciated.
Please take th etime you need - I really need a true answer based on the law for clocking (non exempt) employees who are required to provide non paid call back but get paid if called and all that was in the original request.
I appreciate the effort you are putting into finding out this information.
You are correct in that the law on this matter is grey, and does depend on a number of factors.The law states that non-exempt employees are required to be paid for pre-shift and post-shift activities if they are an integral and indispensable part of the principal activities for which the workers are employed. The term “principal activities” is considered to include any work of consequence performed for an employer no matter when the work is performed. Time spent waiting for work is compensable time for which employees are entitled to be paid if the waiting time is spent primarily for the benefit of the employer and the business.However, while off the clock, your employer will argue that the time worked is de minimis, meaning too little for compensation. However, since the general rule is that employees must be compensated for all of the time they work, it is difficult for employers to prove that the time worked off the clock is de minimis.Accordingly, concerning any time spent actually calling or logging in, the law is pretty clear-cut that you're entitled to receive pay for your time. Gray areas occur when your employer wants you to stand by for duty when you're not technically on the clock. This is "on-call" time and it's required of employees frequently enough that the U.S. Department of Labor (DOL) has released guidelines to identify under what circumstances you should receive pay for these hours.The guidelines can be broken up into the following categories:1. Location:Under the Fair Labor Standards Act or FLSA, if you're physically at the location of your employer's business, you are guaranteed to receive pay for these hours even if you're not technically working. Thus, if you have to call from work, or need a work computer to do the job, then you have a strong argument that you should be paid for this time. If, however, the call can be made from any cell phone, the argument is decreased.2. Restrictions: Disputes about pay usually occur when employees must stand by during their off hours. In this case, the Department of Labor indicates that whether you're entitled to receive pay depends on the restrictions placed on your free time. If you go about your business with no inconvenience other than having to keep your cell phone nearby in case you get a page, you're not working and your employer has no obligation to compensate you. If the on-call time restricts what you can do with your free hours to a significant extent, you may be working and may be entitled to pay.3. Work-Related ActivityAny work related activity must be compensated. You should receive compensation for any work you actually do while you're on call. This is labor, not on-call time. You are required to receive payment for the accumulated time you spent on the phone, or doing anything else where you are actually doing work for the employer.Thus, given the facts, because your free time is consistently affected, you should speak with an employment attorney in your area to be properly compensated for the time worked, and possibly the time you spend waiting for a page.Because the law in these situations is decided on a case by case basis depending on particular circumstances and conditions, the best thing you can do is speak to an employment attorney who can take your case. There are many employment attorneys who would do this, however, the terms of service do not let us point you to any one lawyer in particular. That being said, if you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. An employment attorney in a case like this would take your case on contingency which means that you would not pay anything out of pocket.Good Luck!I hope I have provided you excellent service. If not, please let me know what else I can help you with. If you feel the need to rate my service as either “Bad” or “Poor”, please stop and use the REPLY TO EXPERT to keep talking. I am happy to assist you with whatever issue or clarification you may need and will take the time to explain any concern to your satisfaction. If you feel that I am unable to do so, please ask me to have another expert assist me and I will opt out immediately so that you receive the best possible service.Once you are satisfied with the answer, please take the time to rate my answer as one of the top three faces as this is how I receive credit for my time with you.
One final question adn I will let this lie or decide on next options - Is there any law/protection regarding me having to provide the internet service, computer and cell phone and pay all of the fees for the employer to use? They have recently started 'texting' me questions and when I brought this up the reasoning was "well you have free minutes, don't you" I'm not certain that they could not get the fact that no minutes on a cell phone are free but I guess they are free to them if I am paying the bill.
They provide a pager but the managers don't like using them and it seems that this is going to be the wave coming forth will they have to inform us that is part of work responsibilities to provide these items in order to work?
This really depends if you can legally be considered an employee or an independent contractor. If you are an employee:"An employee is entitled to be reimbursed by his or her employer for all expenses or losses incurred in the direct consequence of the discharge of the employee’s work duties." (California Labor Code Section 2802)Thus, you should really consider going to Martindale.com and speak to an employment attorney in your area. They can help you be reimbursed for all of the expenses you have paid to date as well as protect you from retalitation from your employer from bringing this up. They can also help you determine if your employment contract tries to set you up as an independent contractor, and if it does, they can see if there are enough facts to place you back into the employee category.Hopefully this helps you decide what your next steps are. If you found the information helpful to you, please do not forget to provide me with a positive rating as without one I will not receive credit for trying to assist you.Have a wonderful day.
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