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:
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.
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 Activity
Any 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.
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